Hearing Transcript - April 12 2010

1 Military Police Complaints Commission
2
3
4 AFGHANISTAN PUBLIC INTEREST HEARINGS
5 held pursuant to section 250.38(1) of the National Defence
6 Act, in the matter of file 2008-042
7
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9 LES AUDIENCES D'INTÉRÊT PUBLIQUE SUR L'AFGHANISTAN
10 tenues en vertu du paragraphe 250-38(1) de la Loi sur la
11 défense nationale pour le dossier 2008-042
12
13
14 TRANSCRIPT OF PROCEEDINGS
15 held at 270 Albert St.
16 Ottawa, Ontario
17 on Monday, April 12, 2010
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20 VOLUME 4
21
22BEFORE:
23
24Mr. Glenn Stannard Acting Chairperson
25
26Mr. R. Berlinquette Commission Member
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28Ms. R. Cléroux Registrar
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30
31APPEARANCES:
32
33Mr. Nigel Marshman Commission counsel
34Mr. Matthew McGarvey
35
36Ms. H. Robertson For Maj Bernie Hudson, Maj
37Ms. E. Richards Michel Zybala, Maj Ron Gribble,
38Mr. V. Wirth LCol (Ret'd) William H. Garrick,
39 CWO Barry Watson, MWO Jean-Yves Girard, Maj John Kirschner
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41Ms. Grace Pastine For Amnesty International and
42Mr. Khalid Elgazzar ForB.C. Civil Liberties Association
43
44Mr. M. Wallace For Capt(N) (Ret'd) Moore, CFPM
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47 A.S.A.P. Reporting Services Inc. © 2010
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49 200 Elgin Street, Suite 1105 333 Bay Street, Suite
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51 Ottawa, Ontario K2P 1L5 Toronto, Ontario
52 M5H 2T4
53 (613) 564-2727 (416) 861-
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4 INDEX
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7 PAGE
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9SWORN: LIEUTENANT-COLONEL GILLES SANSTERRE 1
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11 Examination by Mr. McGarvey 7
12 Cross-Examination by Ms. Pastine 118
13 Cross-Examination by Mr. Wallace 164
14 Cross-Examination by Ms. Richards 171
15 Re-Examination Mr. McGarvey 194
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18 ********
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2 (iii)
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5 LIST OF EXHIBITS
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7NO. DESCRIPTION PAGE
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9P-53 Collection U. 2
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11P-54 Email from Lieutenant-Colonel Garrick dated
12 March 1, 2007, document number C448. 6
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14P-55 Email from Lieutenant-Colonel Garrick dated
15 March 6, 2007, document number C449. 6
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17P-56 MPCC Final Report - Public Interest Investigation. 133
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1 Ottawa, Ontario
2--- Upon resuming on Monday, April 12, 2010
3 at 9:05 a.m.
4SWORN: LIEUTENANT-COLONEL GILLES SANSTERRE
5 THE CHAIR: Good morning. Thank
6you.
7 Bonjour. Good morning.
8 Before we start this morning, I
9would just like for us to take a moment in
10remembrance of Canadian Forces Private Tyler
11William Todd, 26 years old, who was killed about
127:30 in the morning on Sunday in Afghanistan. I
13think it appropriate we take a moment and remember
14him and his family and the other injured soldier in
15our thoughts and prayers as we move along with our
16day. So if we could take a moment in remembrance.
17 Thank you.
18 Mr. McGarvey.
19 MR. McGARVEY: Yes, good morning,
20members of the Panel. Thank you.
21 Just a couple of brief
22housekeeping matters. First, if I could introduce,
23for counsel for the complainants, this morning we
24have someone who is a new face to the Panel and
25myself, but not new to these proceedings, Ms. Grace
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1Pastine, who is counsel to the BC Civil Liberties
2Association and is appearing also in conjunction
3with Mr. Elgazzar, with whom we are familiar, for
4Amnesty International, as well.
5 So she is here this morning. I
6would like to welcome her.
7 THE CHAIR: Welcome.
8 MR. McGARVEY: The second
9housekeeping matter, there are some new exhibits to
10be entered this morning. First, there is something
11which is referred to as Collection U, and it is a
12series of documents that were produced by Mr.
13Champ, counsel for the complainants. And if those
14could be entered, they already have been assigned a
15number, P-53.
16 EXHIBIT NO. P-53: Collection
17 U.
18 MR. McGARVEY: It is a collection
19of nine documents, and they have been bound and
20tabbed into a volume for the parties.
21 THE CHAIR: Okay.
22 MR. McGARVEY: If I could just
23make a couple of comments about these documents.
24 These documents were provided to
25Mr. Champ apparently either directly or indirectly
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1as a response to a public document request under
2the Access to Information legislation. They were
3never provided to the Commission, and it is
4troubling to Commission counsel that that is the
5case. It appears that the government unilaterally
6decided, on the basis of evidence unknown to us,
7that the documents were unavailable to the military
8police, despite the fact that they appear to be
9publicly available on request to members of the
10public.
11 In our view, whether these
12documents were available to the military police is
13exactly what the Commission is supposed to be
14determining, and we find it troubling, to say the
15least, and I think it is fair to say that Mr. Lunau
16and/or other Commission counsel intend to pursue
17this and other issues further, but I do not propose
18to canvass all of the issues in relation to that
19this morning.
20 I simply wanted to make that
21comment in relation to these documents.
22 THE CHAIR: Are there other
23documents that are like documents that somebody has
24that we have not received?
25 MR. McGARVEY: At this point, we
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1cannot know that, for the simple reason that you
2can't know what you don't have. So that is, I
3think, what we will be pursuing. I think it is
4based on some contention over the framing of and
5interpretation of the summonses that were issued by
6the Commission in relation to documents and what
7test the government might be applying to the issue
8of whether these documents were "available" to the
9military police.
10 Of course, our view is if they are
11available to the general public, these ones at the
12very least ought to have been captured. But we
13will leave that to further discussion perhaps
14between counsel, and we will advise the Commission
15further, if and when it becomes necessary to seek
16Commission's formal input into the issue.
17 The other --
18 MS. RICHARDS: If I could just
19comment on that before you move on, I just want to
20be clear about Commission counsel's assertion that
21the documents were available to the general public.
22 As you are aware, under ATIP all
23government documents are available to the general
24public subject to the appropriate privileges being
25applied.
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1 So it's a bit of a misnomer to say
2because these documents are available to the
3general public, they would have been available to
4MPs. Under the regime that we work in in the
5government, all documents can be requested by the
6public.
7 THE CHAIR: I think the argument
8is bigger than that, isn't it, though, in terms
9of --
10 MR. McGARVEY: Well, as I said, I
11don't think it is productive to get into the
12substance of any dispute at this time. I simply
13wanted to put some comments on the record and you
14have those comments.
15 There are two more documents to be
16entered this morning. They have an MPCC number
17C448 and C449. They have been assigned, subject to
18being entered, Exhibit Nos. P-54 and P-55. And
19they are an email -- two emails from
20Lieutenant-Colonel Garrick dated March 1st and
21March 6th, 2007, respectively.
22 THE CHAIR: So 54 would be which
23email?
24 MR. McGARVEY: P-54 would be the
25March 1st, 2007 email.
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1 EXHIBIT NO. P-54: Email from
2 Lieutenant-Colonel Garrick
3 dated March 1, 2007, document
4 number C448.
5 MR. McGARVEY: Document number
6C448. And P-55 would be the March 6th, 2007
7document, C449.
8 EXHIBIT NO. P-55: Email from
9 Lieutenant-Colonel Garrick
10 dated March 6, 2007, document
11 number C449.
12 THE CHAIR: Where are those
13documents?
14 MR. McGARVEY: They should already
15have been placed in the collection by --
16 THE CHAIR: Oh, they're in the
17binders?
18 REGISTRAR: Yes, 54 and 55.
19 THE CHAIR: All right. Okay,
20thank you very much.
21 MR. McGARVEY: Thank you.
22 Today we have one witness
23scheduled. That would be Lieutenant-Colonel Gilles
24Sansterre, or Sansterre, depending on how people
25pronounce his name. He apparently has no
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1preference as to the pronunciation, so we are
2fortunate that the people whose inclinations lean
3towards the anglicized pronunciation --
4 THE COURT: People have probably
5messed up the pronunciation so much he has given up
6in the hope of correcting.
7 MR. McGARVEY: Yes. I appreciate
8his cooperation in that area. In any event, if we
9could have Lieutenant-Colonel Sansterre appear,
10please?
11 MR. McGARVEY: He has already been
12sworn by the registrar.
13 THE WITNESS: Good morning.
14 THE CHAIR: Good morning, and
15welcome. And we apologize if we at any time
16butcher the proper pronunciation of your name.
17 THE WITNESS: No problem at all.
18EXAMINATION BY MR. McGARVEY:
19 Q. Just for the assistance of
20the members of the public and the reporters, if you
21could draw the microphone a little closer to you so
22that we can all hear you properly. Thank you.
23 Lieutenant-Colonel Sansterre, I
24understand that you are currently the commanding
25officer of the Canadian Forces National
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1Investigation Service?
2 A. Yes, that's correct.
3 Q. How long have you been in
4that position?
5 A. I have been in that position
6since August of 2008.
7 Q. And you took command of the
8National Investigation Service after retirement of
9Lieutenant-Colonel Garrick?
10 A. Yes.
11 Q. Who is the subject in these
12proceedings?
14 Q. I understand there was a
15slight gap between his retirement and your taking
16command?
17 A. Yes, there was, a month or so
18or maybe a little more than that.
19 Q. Fair enough. If I can just
20get a little bit more of your experience and
21background. First of all, when did you join the
22Canadian Forces?
23 A. In 1985, March of 1985.
24 Q. And you obviously, either
25immediately or at some point, became a military
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1police. When did you become a member of the
2military police?
3 A. I graduated from my basic
4military police course, my QL3 course, in December
5of '85.
6 Q. Okay. And could you just
7tell us a little bit about your career path from
8that time up until taking over the reins of the
9National Investigation Service?
10 A. Sure. In, as I say, '85 I
11graduated from my QL3 as a private military
12policeman. I was posted to Shearwater, Nova Scotia
13and did five years -- six years there.
14 I was commissioned in 1992 after
15studying at St. Mary's University and acquired a
16criminology degree, a bachelor of arts, majored in
17criminology, and was commissioned in the Canadian
18Forces as an officer in the military police branch.
19 From there, had postings to
20Halifax to the military police guard room there;
21Winnipeg, Manitoba as the detachment commander of
22the military police section there; one year with
23the Military Police Academy where I was a training
24officer; followed by 2001 with a posting to Ottawa
25in a position then known as the Deputy Provost
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1Marshal National Investigation Service - 2, so kind
2of a senior operations officer's position in the
3organization in headquarters.
4 Following that, I was the officer
5commanding of our support detachment. On promotion
6to major, I took over that detachment for 18 months
7to two years. Then following that I was the
8officer commanding of central region of the NIS
9detachment, and in 2006 was promoted to my current
10rank of Lieutenant-Colonel.
11 And from there, did jobs in
12resource management, in individual training and
13education, a short stint in our professional
14standards organization, and in -- which brings me
15to 2008, in August, where I was appointed as the CO
16of CFIS.
17 I had one operational tour in
18Kosovo in 1999 and attended, you know, Manitoba
19floods, off in Montreal with the ice storm in early
202000.
21 Q. Thank you. I would just
22like, for the assistance of the Panel, if we could
23go into a little bit about what the NIS is, how it
24is structured, how it its command is structured and
25what its purpose is.
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1 So perhaps we could start this
2way. We have heard that the Canadian Forces
3National Investigation Service is a branch of the
4military police; correct?
5 A. Yes. We are a unit within
6the military police organization, yes.
7 Q. Can you describe the chain of
8command within the National Investigation Service?
9In other words, you're the head of the National
10Investigation Service. Who reports to you and who
11do you report to?
12 A. All detachments' OCs report
13to me, so everybody that works within the National
14Investigation Service, through their officers of
15course, report to me, and I report directly to the
16Canadian Forces Provost Marshal.
17 Q. Okay. And with respect to
18the non National Investigation Service military
19police, what, if any, command relationship is there
20between the NIS and those military polices?
21 A. I have no command
22relationship over any military police other than
23National Investigation Service, unless -- there are
24times that military police members are seconded to
25the unit to work on NIS-related files. At that
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1time, I would have command relationship.
2 Q. So, in essence, if I
3understand correctly, it is a separate and
4independent chain of command of its own, separate
5from the military police chain of command; is that
6correct?
7 A. We have a separate, an
8independent chain of command from the Canadian
9forces, but we are -- I report to the Canadian
10Forces Provost Marshal as the head of the military
11police.
12 Q. Fair enough. But, sorry, I
13-- the Canadian Forces Provost Marshal, he's the
14head of the military police for the Canadian
15Forces, but there is no reporting relationship
16between, for instance, detachment commanders who
17are not in the NIS, the task force Provost Marshals
18who might be deployed in various places in the
19world. There is no direct command relationship
20between those people and your organization; is that
21correct?
22 A. That's correct.
23 Q. Okay. What would the purpose
24of the National Investigation Service be, and why
25would it be in a separate sort of chain of command
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1all on its own?
2 A. The purpose of the National
3Investigation Service is, essentially, it's a major
4crimes unit of a police department to investigate
5serious and sensitive matters.
6 Q. And what kind of matters
7would count as serious and sensitive matters, such
8that they would be perhaps unique to the purview of
9the NIS?
10 A. Sure. By definition, serious
11are those indictable or hybrid offences, those more
12serious crimes. And sensitive is -- sensitive
13would be, firstly, to find as crimes committed by
14persons in authority. In the beginning, we tagged
15it majors and above, but there are times that, you
16know, base chiefs or people in significant
17positions, any crimes that they commit, we would be
18responsible for investigating.
19 Q. Now, you have been using the
20crimes that they commit. What you really I think
21mean is allegations; correct?
22 A. Yes, that's correct,
23allegations of any crimes that have been committed.
24We investigate them and determine if there is any
25factual basis to those allegations and lay charges,
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1if warranted.
2 Q. Right. Would your
3investigative duties include -- would the NIS
4investigative duties include investigation into
5whether, for instance, a commander's orders were
6proper or unlawful? Would that be the kind of
7thing, I guess, that is within the NIS purview?
8 A. Yes. That could be something
9that could be investigated, yes.
10 Q. And are there specific NIS
11duties which relate to treatment of detainees or
12prisoners of war?
13 A. All of the complaints -- all
14of the allegations or complaints made with regards
15to treatment of detainees and those subjects go to
16discipline as part of the technical authorities on
17deployment. The NIS detachment in Afghanistan
18would investigate; would investigate any of those
19allegations, yes.
20 Q. Okay. And just in terms of
21the legal framework that that might include, I may
22be referring to some of the documents in front of
23you. And just so I can clarify in advance, there's
24a collection of five documents with white covers
25called the main witness documents.
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1 There's then a collection of two
2documents with blue covers, which are the NIS
3witness documents. I may be referring to those,
4and we have a couple of other documents we may look
5at today, just for clarity for your assistance, if
6I can look at that.
7 If you could turn to the main
8witness book, volume 2, so the large white
9collection? This document -- sorry, this volume
10contains documents at tab 19, and, unfortunately,
11not all of the individual pages are numbered, but
12if you leaf through so that you are approximately
13two pages from the end of that tab?
14 Now, first of all, at the top of
15the page on the right-hand side there's an
16identification number, and it seems to be a policy
17document of sorts in relation to military police
18officers. Is this document familiar to you?
19 A. No, it isn't.
20 THE CHAIR: Which page are you on,
21Mr. McGarvey?
22 MR. McGARVEY: Well, all of the
23pages at the top -- if you turn to the very front
24of it, it has "Chapter 5 - Detention Operations".
25 Then at the very top there is a
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1document number, and it seems to be a military
2police document entitled -- well, it has a
3reference number B-GL-362-001/FP-001.
4 MS. RICHARDS: Just for the
5clarity of the Panel and for Mr. McGarvey, we heard
6testimony regarding this document previously when
7we had general witnesses. This is not a military
8police document. This is an army document. If you
9go back to the front page, you will see that
10there's a footnote down at the bottom, which says,
11"Conduct of Land Operations - Operational Level
12Doctrine for the Canadian Army".
13 MR. McGARVEY: Okay.
14 MR. BERLINQUETTE: On the page
15just previous to that at paragraph 4 -- 34-4:
16 "The purpose of this manual
17 is to establish the doctrinal
18 basis for the provision of
19 Military Police support to
20 tactical units and formations
21 of the Canadian Army."
22 So --
23 MS. RICHARDS: It is a Canadian
24Army document. It was prepared by the Land Force,
25and it is an internal document that talks about how
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1military police support their operation.
2 So as you may recall, Member
3Berlinquette, we heard testimony previously about
4these documents. It certainly does talk about
5military police, but it is not a military
6police-generated document.
7 MR. BERLINQUETTE: Thank you.
8 BY MR. McGARVEY:
9 Q. That's fair enough. Perhaps
10if I can direct you, then, to this document two
11pages from the end, there is a title, "Criminal
12Investigations".
13 I think what this outlines is the
14Canadian Army's understanding of how the National
15Investigation Service offers what would be termed
16operational support. Does that accord with what
17you might read in this document?
18 A. You are referring to
19paragraph 37 that talks about the NIS; correct?
20 Q. Yes.
21 A. Yes.
22 Q. And I think if I understand,
23to sum paragraph 37 up, what it seems to indicate
24is that, when deployed with the army, the National
25Investigation Service is independent of the army
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1chain of command and remains under the command of
2the Canadian Forces Provost Marshal, and then down
3through your chain; is that correct?
4 A. When deployed, the NIS
5resources remain under command of the Canadian
6Forces National Investigation's CO, myself;
7correct.
8 Q. And the National
9Investigation Service, as they point out, has the
10authority to lay charges if they investigate and
11see fit to lay charges; correct?
13 Q. The upshot of this, I take
14it, would be that the decision to lay charges, or
15not, would be independent of the army's own command
16structure. It would be up to the military police
17and the National Investigation Service people
18investigating to decide whether or not to lay
19charges in circumstances where they were met with
20an allegation when deployed with the army; is that
21correct?
22 A. That's correct. The NIS can
23lay charges independent of the army chain of
24command when the elements of any offence have been
25met.
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1 Q. And, conversely, if the army
2chain of command preferred there not be charges
3laid, the NIS could do so, anyway?
5 Q. In paragraph 38, it indicates
6that the army's understanding, at least, is that
7this can include allegations of breaches and grave
8breaches to the Geneva Conventions, and that
9persons who are alleged to have violated these
10conventions could be investigated and brought
11before Canadian courts pursuant to the Criminal
12Code and National Defence Act.
13 Does that accord with your
14understanding of the NIS's jurisdiction?
15 A. The NIS has jurisdiction over
16persons subject to the Code of Service Discipline;
17that's correct, yes.
18 Q. And that would include
19allegations of violations of such statutes as the
20Geneva Convention, at least as it is incorporated
21into Canadian law?
22 A. Yes.
23 Q. When you indicate that you
24have jurisdiction over Code of Service Discipline
25offences, would that include such things as
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1violations of the law of armed conflict or the
2rules of engagement?
3 A. Just to clarify, I said we
4have jurisdiction over persons subject to Code of
5Service Discipline.
6 Q. Fair enough. When you have
7jurisdiction over persons who are subject to the
8Code of Service Discipline, would that entail that
9you have jurisdiction to investigate allegations
10that they have breached the Code of Service
11Discipline by violating, for instance, the rules of
12engagement of conflict, the laws of armed conflict?
13 A. Yes.
14 Q. Would that also include the
15jurisdiction to investigate if a commander had
16issued an order which -- I'm not saying that you
17would necessarily conclude they had issued an order
18which was illegal, but if somebody alleged they had
19issued an order which was illegal, would you have
20the jurisdiction under the Code of Service
21Discipline and/or Criminal Code to investigate a
22Canadian Forces commander who has issued an order?
23 A. A Canadian Forces commander
24who has issued an order, yes.
25 Q. Okay. The topic that has
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1been raised by the complainants in this matter is
2that certain commanders may have issued orders
3which violate various Canadian statutes and perhaps
4international statutes, and thereby their orders
5were unlawful.
6 I take it from what you have said
7that investigation of such an allegation would at
8least be something the NIS has jurisdiction to
9pursue?
10 A. Yes.
11 Q. Just getting to your own role
12in the National Investigation Service, sometimes it
13is difficult, for people who aren't directly
14involved, to understand exactly where you stand
15with respect to particular investigations and what
16your role is as an oversight commander of the NIS.
17 Could you just explain how
18involved you are in the day-to-day operation of the
19NIS investigations that are conducted or initiated?
20Do you have decision-making power into what is
21initiated? Are you consulted? Do you have
22oversight and do you determine whether it was
23appropriate after the fact, or --
24 A. Well, I am head of the
25Canadian Forces National Investigation Service, so
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1I have people that look after day-to-day operations
2of it. I can't be involved in every one of the
3investigations that are ongoing, so I have
4oversight, I guess is the best way --
5 Q. Do you personally have to
6give your approval before an investigation is
7initiated, or does that happen lower down on the
8CFNIS chain of command?
9 A. That can happen at the
10detachment level. If the detachment receives
11allegations, receives a complaint, they can
12initiate an investigation. We are made aware of
13that initiation of investigation and we monitor it.
14 Somebody within my staff would
15monitor that investigation.
16 Q. And what about the decision
17to either not investigate or to cease to continue
18to investigate something? Is that something that
19occurs at the lower levels or would that decision
20have to occur at your level, if an allegation was
21raised?
22 A. If an allegation is raised
23and it goes to the detachment level and they feel
24that it should be left to the military police
25detachment to investigate, not the NIS to
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1investigate, they can do that. But, again, they
2notify us that they have -- I would not say refused
3an investigation, but are not proceeding with the
4investigation and feel it is best to investigate it
5by the military police detachment.
6 Q. Can you just tell us, in
7general, are NIS officers empowered to initiate
8investigations on their own, absent a specific
9complaint? In other words, if they detect that
10there may be something, you know, based on, for
11instance, publicly available documentation or
12publicly available discussions, if they detect
13there may be an issue which raises a matter of a
14serious and sensitive nature in the military
15command, are NIS officers empowered to initiate an
16investigation on their own?
17 A. Yes, they are. They would
18tell their chain of command that, you know, I have
19heard about this through whatever means.
20 As you can appreciate, we're not
21the front line police officers out patrolling the
22beat, so don't come upon crimes ourselves often.
23 Q. Sure.
24 A. It is usually through
25allegations and complaints made to us.
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1 Q. One of the allegations that
2did make it into the public sphere was the
3allegation contained in the complaint to the
4Military Police Complaints Commission by Amnesty
5International and the BCCLA in June of 2008. First
6of all, are you familiar with that complaint?
7 A. I am familiar with the
8complaint, yes.
9 Q. Okay. So you took over the
10NIS shortly after that complaint, a couple of
11months, and that complaint relates to an alleged
12failure to investigate on the part of various
13military police officers, including the NIS,
14potentially unlawful orders to transfer detainees
15between May 3rd, 2007 and June 12th 2008.
16 Do you know if there were any NIS
17investigations of that kind during that period of
18time?
19 A. Can you say that question
20again, please?
21 Q. Sure. The complaint alleges
22that the NIS and the military police failed to
23investigate potentially unlawful orders to transfer
24detainees between the period of May 3rd, 2007 and
25June 12th, 2008.
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1 You took command of the NIS in
2August of 2008. Do you know whether there were any
3investigations? In other words, they're saying
4nobody investigated. Do you know if there were
5investigations into the lawfulness of transfer
6orders between May 2007 -- made between May 2007
7and June 2008?
8 A. No, I have no knowledge of
9any of those investigations.
10 Q. And none have been initiated
11under your command; is that fair to say?
12 A. Into the orders, no.
13 Q. Okay. Now, I would like to
14get into some specific investigations that I
15believe were ongoing during your tenure.
16 A. Sure.
17 Q. There is a matter known as
18Operation Centipede. Are you familiar with that
19investigation?
20 A. I am familiar, yes, with the
21investigation.
22 Q. And, more accurately, that's
23a series of investigations that were collected
24under a single umbrella; is that fair to say?
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1 Q. And it had a general
2occurrence number, which would be 2008-6906. And
3were you involved in the startup of operation
4Centipede?
5 A. No.
6 Q. It predates your tenure as
7the commander of the NIS, the startup of it?
9 Q. And I believe it started in
10March 2008 under your predecessor,
11Lieutenant-Colonel Garrick; is that correct?
12 A. I don't know the exact date
13when it started, but Lieutenant-Colonel Garrick was
14my predecessor, yes.
15 Q. Fair enough. You, however,
16were the commanding officer when it wrapped up in
17April 2009; is that correct?
18 A. When some of the
19investigations wrapped up, that's correct.
20 Q. Okay. If you can turn to the
21NIS collection?
22 A. Which volume?
23 Q. Volume 1, please. If you
24look at -- the page references I will use are the
25ones at the very bottom of each page, the very
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1small lettering or numbering. So tab 11, if I
2could just direct your attention to page 6 of 66?
3Then we have page 6 and 7. There is a letter, I
4believe, under your signature; is that correct?
6 Q. And this is a letter directed
7to the Canadian Forces Provost Marshal, the CFPM?
8 A. Yes.
9 Q. And this is a report from you
10concerning the findings of Operation Centipede?
11 A. That's correct. It is a
12summary of the eight specific investigations under
13Op Centipede.
14 Q. Okay. And I am just
15wondering. You said that in April 2009 you
16reported on or concluded some of the
17investigations. Could you clarify whether it was
18some of them or all of them that were concluded as
19of April 1st, 2009?
20 A. This is a summary of all of
21the Op Centipede investigations, and it is a letter
22saying that they have all been concluded now. Some
23of these specific investigations were concluded
24earlier, but this one closes off all of them, the
25last one, I guess.
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1 Q. In fairness, some of the ones
2concluded before you were even commanding officer
3of the NIS, the individual investigations; correct?
4 A. That's correct. Some of them
5were concluded prior to, yes.
6 Q. And so, again, this is an
7oversight letter from the commander of the National
8Investigation Service saying, My people have
9concluded these investigations and here is a
10summary of the results?
11 A. Here is the general findings,
12correct.
13 Q. When you, if I can put it
14this way, signed off on this umbrella
15investigation, did you first review the individual
16investigation findings? Did you go through each
17one of these?
18 A. I would have had a cursory
19review of them and briefings from my ops or my DCO
20on what the outcome of those investigations were.
21 Q. So you either looked over
22them or you were briefed on them before signing off
23on them?
24 A. Yes.
25 Q. And by signing off on them,
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1are you, I guess, sustaining that they have been
2fully and properly investigated to the best of your
3knowledge at that time?
4 A. I am signing off that the
5investigations are complete, yes.
6 Q. And that would include that
7the scope of the investigation was as thorough as
8you would expect?
9 A. Yes.
10 Q. And the conclusions reached
11were appropriate in light of the evidence that was
12uncovered?
13 A. Yes.
14 Q. Are you familiar with -- you
15must be familiar with something called SAMPIS, the
16military police data bank of investigative
17materials, computer-based data bank?
18 A. Security and Military Police
19Information Centre, that's correct -- Information
20System, sorry.
21 Q. So what we have a fair number
22of with relation to Operation Centipede would be
23SAMPIS printouts in relation to these
24investigations. Would you have reviewed things
25like the SAMPIS printouts before signing off?
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1 A. Yes.
2 Q. What, in your view, was the
3focus of Operation Centipede in terms of the
4investigation? It is umbrella, but why is it an
5umbrella and what is its purpose?
6 A. I understand when Centipede
7stood up, it was to investigate allegations of
8abuse of detainees by military personnel or persons
9subject to the Code of Service Discipline in
10Afghanistan.
11 Q. So your understanding was it
12is to investigate abuse of Afghan detainees by
13Canadian Forces members or persons covered under
14the Code of Service Discipline?
15 A. Allegations of those abuses,
16yes.
17 Q. Was it your understanding
18that it was limited to abuse allegations where the
19abuse itself was committed by persons covered by
20the Code of Service Discipline?
21 A. Yes. That would be my
22understanding, yes.
23 Q. So I take it it would follow,
24from your understanding, at least, Operation
25Centipede was not meant to capture the situation
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1where somebody other than a person covered under
2the Code of Service Discipline abused a detainee
3after we had transferred them?
4 A. Persons not subject to the
5Code of Service Discipline that we have no
6jurisdiction over, no.
7 Q. I take it also that it did
8not include an investigation of the persons making
9orders to transfer where there was an allegation of
10subsequent abuse by a non-Code of Service
11Discipline jurisdiction person?
12 A. No, it did not.
13 Q. I asked you earlier about
14whether the NIS had jurisdiction to investigate
15allegations that an order was unlawful.
16 There is something that crops up
17fairly routinely in our enquiry and that is
18something called a theatre standing order.
19 Could you explain, first of all,
20just so that we have an understanding, what is a
21theatre standing order in military parlance?
22 A. A standing order would be a
23commander's order to the troops on specific rules
24and regulations, for example, maybe one on alcohol.
25There will be no consumption of alcohol on camp.
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1That would be --
2 Q. Would it be accurate to
3characterize a standing order as an order that
4applies not to a specific set of circumstances or
5specific individual conduct, but it is an order
6that covers conduct over a period of time? In
7other words, alcohol while in Afghanistan, here is
8the broad regulatory framework and this is an order
9now, that kind of thing?
10 A. Could you repeat your
11question, please? Sorry.
12 Q. Sure. I just want to
13distinguish a standing order from an individual
14order. You know, an officer can issue an order. I
15would like to know the difference.
16 A. Well, the standing order is,
17of course, in writing and, until revoked, is the
18order.
19 Q. A broadly applied set of
20rules for the set of circumstances that the order
21is directed at?
22 A. Yes.
23 Q. Now, one of the theatre
24standing orders that we have a lot of interest in
25here would be something called TSO-321A. Are
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1you familiar with that?
2 A. No. I wouldn't -- you know,
3I would have to refer to whatever book, if you have
4a book here.
5 Q. Fair enough. If you could
6turn to volume 2 of the main witness collection,
7the white collection, and if you could turn to tab
82.
9 A. Thank you.
10 Q. This is something referred to
11as the theatre standing order or TSO 321,
12"Detention of Afghan Nationals and Other Persons".
13 I think, if you turn to page 12 of
1437, it indicates that this TSO is effective as of
1527 May 2007?
16 A. Yes. It does, yeah.
17 Q. Okay. This appears to be a
18standing order concerning the detention of Afghan
19nationals and other persons and how that is to be
20handled; is that fair to say?
21 A. Yes.
22 Q. Would the National
23Investigation Service have jurisdiction to
24investigate allegations that this theatre standing
25order was not complied with, if it were not -- if
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1there were an allegation it was not complied with?
2 A. Yes, it could be possible
3that if there was an allegation that it was not
4complied with, that we would investigate, yes.
5 Q. Do you know if, either in
6relation to Operation Centipede or in relation to
7matters occurring between May 2007 and June 2008,
8there were ever investigations by the NIS into
9allegations that any element of the theatre
10standing order was not complied with?
11 A. I don't know.
12 Q. Are allegations of violations
13of orders always a matter for the military police,
14or are they sometimes dealt with by the chain of
15command on its own, to your knowledge?
16 A. They can be dealt with by the
17chain of command, depending on the seriousness of
18the order. For example, some soldier doesn't get
19his hair cut, but it says there is an order he is
20supposed to have a haircut, it certainly would not
21be something that the NIS would investigate.
22 Q. Certainly, though, if it was
23something that counted as serious, it would be an
24NIS matter?
25 A. Yes.
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1 Q. If I can turn to some
2specific general occurrences under Operation
3Centipede just to get some clarification and to get
4your views on some of them?
5 A. Sure.
6 Q. There is a general occurrence
7at tab 1.
8 A. To volume?
9 Q. And it is NIS witness
10documents volume 1 of 2.
11 A. Thank you.
12 A. Sorry, tab 1?
13 Q. Tab 1.
14 A. Thank you.
15 Q. And if you turn to page 6 of
1611, there is a letter, I believe under your
17signature, January 15th, 2009; correct?
18 A. Yes.
19 THE CHAIR: There is nothing in my
20notes --
21 MR. McGARVEY: Oh, okay.
22 THE CHAIR: Go ahead.
23 MR. McGARVEY: Okay, good.
24 BY MR. McGARVEY:
25 Q. So January 15th, 2009, you
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1write a letter which seems to be directed towards
2the issue of a loss of a server containing secret
3information.
4 Could you tell us a little bit
5about -- first of all, was that the main subject
6matter of 2007-2589, or was this a side issue in
7that investigation, or do you know?
8 A. I don't really know.
9 Q. If you would turn to page 8
10of 11, we have the synopsis of it, and I believe,
11to put it in short form, this is the Attaran
12investigation into the alleged abuse of three
13Afghan detainees. Is that -- I may be wrong about
14that, but --
15 A. That's certainly what it --
16it seems to deal with a complaint from three
17detainees from April '06, it looks like
18investigated by Inspector Gfellner, which would be
19the file known as Camel Spider, I guess.
20 Q. We have heard a little bit
21about Camel Spider in the past, but your letter
22seems to be directed specifically towards a loss of
23a server, a computer server?
24 A. Correct.
25 Q. Your conclusion was that the
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1server wasn't lost. It was wiped clean and brought
2back into service?
3 A. Yes.
4 Q. Was this seen as something
5sort of administrative and routine, or was there a
6concern about whether, in this rather sensitive
7investigation, information was being tampered with,
8or do you know?
9 A. I don't know.
10 Q. In any event, there were no
11charges or steps taken as a result of this server
12being wiped clean?
13 A. Not to my knowledge.
14 Q. If you could turn to tab 21?
15I think if we look at page 5 of 45, this is General
16Occurrence 2008-6918?
17 A. Yes.
18 Q. And what we have at page 5 of
1945 appears to be Sergeant Patricia Scowen's summary
20of the nature of the investigation or the nature of
21the complaint; is that fair to say?
22 A. Yes. The MPIR complaint,
23correct, military police information report
24complaint.
25 Q. Okay. Could you just
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1clarify? What is an MPIR complaint synopsis?
2 A. When we open an
3investigation, we put a complaint in, so it is a
4military police information report complaint.
5 Q. Okay. This is essentially
6the framing of the complaint as entered by the
7military police on their SAMPIS system?
8 A. Correct.
9 Q. And it indicates that there
10was information raised from Colonel Noonan's
11affidavit, which is in the news on May 4th, that
12abuse had taken place after a detainee was handed
13over and Canadian Forces persons observed it and
14took no action. Why did chain of command not
15report this?
16 I think attached to this we see at
17page 13 of 45, and also at page 8 of 45, two
18newspaper articles dated May 4th, 2007. Then
19starting at page 18, we see Colonel Noonan's
20affidavit itself.
21 A. Yes. That's correct.
22 Q. Now, do you know the context
23in which this affidavit of Colonel Noonan existed?
24Do you know about the court application or
25applications upon which it was tendered?
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1 A. No, I don't.
2 Q. So did you go into any other
3documents with respect to the Federal Court
4application to see if there was another side of the
5story, other than Colonel Noonan's affidavit, to
6address this allegation?
7 A. Did I personally do that?
8 Q. Or direct anybody or
9understand anybody under your command to have done
10so?
11 A. I am not aware, no.
12 Q. I am going to be referring to
13something that is already an exhibit. However, it
14doesn't, for some reason, appear to have been put
15into the binder collection, perhaps because it was
16already an exhibit entered. We are just handing
17out copies. If you could bear with us for a
18moment?
19 THE CHAIR: Where we might find
20that one?
21 MR. McGARVEY: You will find that
22at Exhibit P-9, which I believe is -- it is in the
23human rights and related materials book volume.
24 THE CHAIR: Volume 5, tab?
25 MR. BERLINQUETTE: Tab number?
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1 MR. McGARVEY: Oh, sorry. Tab 42.
2 BY MR. McGARVEY:
3 Q. And, Colonel Sansterre, do
4you have that document in front of you?
5 A. Tab 42 to volume 5?
6 Q. Yes.
7 A. Yes.
8 Q. If you look at paragraph 2,
9which is at page 2 of that decision of Madam
10Justice Mactavish, just to give you context, this
11was an injunction application by Amnesty
12International to cease the transfer of detainees
13because of the risk of torture or abuse.
14 At tab 2, Madam Justice Mactavish
15indicates that:
16 "The evidence adduced by the
17 applicants..."
18 That is by the complainants in
19this matter:
20 "... clearly establishes the
21 existence of very real
22 concerns as to the
23 effectiveness of the steps
24 that have been taken thus far
25 to ensure that detainees
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1 transferred by the Canadian
2 Forces to the custody of
3 Afghan authorities are not
4 mistreated."
5 MS. RICHARDS: In fairness to the
6witness, perhaps we could ask him first if he has
7ever seen this document, and also to, in fairness
8to him, give him the date of the decision.
9 BY MR. McGARVEY:
10 Q. Very well. This is a
11decision dated February 7th, 2008. You can see it
12on the front on the first page.
13 A. Yes.
14 Q. I took it from your earlier
15answer you had not reviewed this document, because
16you said you did not review anything other than
17Colonel Noonan's affidavit in the record. Am I
18correct in saying that?
19 A. I have never seen this
20document, no.
21 Q. Okay. Had you been aware
22that a Federal Court judge was of the view that
23evidence filed in this matter clearly establishes
24the existence of very real concerns as to the
25effectiveness of steps that have been taken thus
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1far to ensure the detainees transferred by Canadian
2Forces to the custody of Afghan nationals -- of
3Afghan authorities are not mistreated -- had you
4been aware of that and perhaps whatever led her to
5come to that conclusion, do you think that might
6have been relevant to an assessment of General
7Occurrence 2008-6918?
8 A. Well, without the opportunity
9to review the entire document, it is very difficult
10to say. However, this does not give me any
11suspicion that any torture or any abuse has
12occurred.
13 It says that there is concerns
14that the Canadian Forces doesn't take effective
15steps to make sure that there is no -- there's no
16crimes committed, so --
17 Q. You would want to see more
18before you could come to that assessment,
19basically?
20 A. Certainly this doesn't --
21yeah.
22 Q. I suppose part of the point
23is: Why would the Canadian Forces National
24Investigation Service not look to see more; in
25other words, look at the actual documents that
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1underlay a decision like this?
2 A. I don't know if we had access
3to these documents. Like I say, I didn't see these
4documents, so --
5 Q. Well, this is an application
6in the Federal Court, which would include materials
7that were matters of public record, such as the
8affidavit of Colonel Noonan. Presumably the
9complainants didn't file Colonel Noonan's
10affidavit. They would have relied on their own set
11of supporting documents.
12 Is there a reason the NIS wouldn't
13have looked to the application records to see if
14there is anything relevant to detainee abuse
15issues, in your view?
16 A. No.
17 THE CHAIR: Excuse me, would that
18be "no", nothing relevant, or -- what are you
19saying "no" to?
20 THE WITNESS: In answer to his
21question, no, there is no reason why we wouldn't
22have, I guess.
23 BY MR. McGARVEY:
24 Q. No reason not to?
25 A. Right.
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1 A. Okay, fair enough. Thank
2you.
3 If you would turn to page 20 of
4that decision, paragraph 85, it indicates that:
5 "Eight complaints of prisoner
6 abuse were received by
7 Canadian personnel conducting
8 site visits in Afghan
9 detention facilities between
10 May 3, 2007 and November 5,
11 2007. These complaints
12 include allegations that
13 detainees were kicked, beaten
14 with electrical cables, given
15 electric shocks, cut, burned,
16 shackled, and made to stand
17 for days at a time with their
18 arms raised over their heads.
19 "While it is possible that
20 these complaints were
21 fabricated, it is noteworthy
22 that the methods of torture
23 described by detainees are
24 consistent with the type of
25 torture practices that are
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1 employed in Afghan prisons,
2 as recorded in independent
3 country condition reports,
4 including those emanating
5 DFAIT.
6 "Moreover, in some cases..."
7 Paragraph 87:
8 "... prisoners bore physical
9 signs that were consistent
10 with their allegations of
11 abuse. In addition, Canadian
12 personnel conducting site
13 visits personally observed
14 detainees manifesting signs
15 of mental illness, and in at
16 least two cases, reports of
17 the monitoring visits
18 described detainees as
19 appearing 'traumatized'."
20 If that kind of information, which
21pertains to site visits between May 3rd, 2007 and
22November 5th, 2007, if that had been brought to the
23attention of the NIS or if the NIS had looked at
24documents supporting such contentions, would that
25have initiated an investigation into the
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1circumstances, including perhaps whether it was
2appropriate to order people to be transferred into
3those circumstances?
4 A. There is not enough specific
5information in these paragraphs to lead me to
6believe that these were detainees that were
7captured by Canadians, and their mistreatment of
8course happened in Afghan jails.
9 So without more specific
10information, it would be difficult to say we could
11launch an investigation.
12 Q. Now, just on the second
13point, the mistreatment certainly is alleged to
14have happened in Afghan prisons, and you do not
15have jurisdiction in the NIS over Afghan personnel
16abusing people in Afghan prisons; correct?
17 A. That is correct, yes.
18 Q. However, the fact that you do
19not have jurisdiction to lay a charge against such
20a person does not mean you cannot enquire of those
21persons in order to establish facts that might be
22relevant to laying a charge against a Canadian
23Forces member; is that correct?
25 Q. You can ask and enquire and
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1look into facts in Afghanistan if you want to
2investigate allegations against a Canadian Forces
3commander, for instance; correct?
4 A. Yes.
5 Q. If you could turn, please, to
6page -- sorry. Just to continue, you indicated
7that there is a lack of information in those three
8paragraphs I have excerpted to come to any
9conclusions about whether any crime has been
10committed by a member of the Canadian Forces; fair
11enough?
12 A. Yes. Yes, that's correct.
13 Q. Is there not enough in those
14paragraphs to lead one to make further enquiries
15into the basis for a Federal Court judge's
16conclusions of that nature?
17 A. I mean, you are asking me to
18give you my opinion based on three paragraphs of --
19again, you know, of a lengthy document.
20 We could enquire further, based on
21this, to get more information.
22 Q. In your view, having read
23this, should the NIS either have enquired further
24or should it enquire further into this kind of
25allegation?
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1 A. Again, sorry, you are asking
2me to make a split-second decision based on just
3three paragraphs, and I don't think I can do that
4today. I mean, we make decisions on what we
5investigate as a command team, more information,
6seek legal opinion on the matter, seek legal
7review, some opinions, some guidance. So --
8 Q. Fair enough. I am not asking
9you to come to a conclusion as to whether you
10should charge anybody or do anything like that. I
11am just asking, and I think you have confirmed,
12that it might merit looking into further facts once
13you read something like this coming from the
14Federal Court?
15 A. There really isn't much
16specific in here that would lead me to that
17conclusion.
18 Q. Now, if you can just turn
19back to Colonel Noonan's affidavit, if you look at
20page 31 of 45? That is in the NIS volume, witness
21book volume 1, tab 21, again, page 31 of 45 at tab
2221.
23 First of all, I would like to be
24clear about the sequence of events. Colonel
25Noonan's affidavit is sworn on May 1st, 2007, if
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1you look at the end of it. The Federal Court
2decision I have been reading from is from February
32008, and you signed off on Operation Centipede in
4April of 2009.
5 So the injunction decision comes
6after Colonel Noonan's affidavit, before you have
7concluded Operation Centipede, which includes 6918?
8 THE CHAIR: Can you just go slow
9and give me those dates again?
10 MR. McGARVEY: Sure. Colonel
11Noonan's affidavit, if you look at page 40 of 45,
12is sworn on May 1st, 2007.
13 THE CHAIR: Okay.
14 MR. McGARVEY: The Federal Court
15decision I have been reading from is dated Ottawa
16February 7th, 2008. That's from the first page of
17Madam Justice Mactavish's decision.
18 THE CHAIR: Right.
19 MR. McGARVEY: And Officer
20Sansterre's letter wrapping up globally Operation
21Centipede is dated April 1st, 2009.
22 BY MR. McGARVEY:
23 Q. Do you think it would have
24been helpful to you, before concluding at least
25this general occurrence in Operation Centipede, to
6
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1have had an opportunity to review those Federal
2Court materials that might have informed Madam
3Justice Mactavish's decision and her comments in
4those paragraphs I have read?
5 A. First off, I am not really
6clear on the Madam Justice's decision. Was it to
7cease transfers? I am not familiar with the
8document enough to know that.
9 Q. It was an injunction
10application to cease the transfer of detainees
11because of the risk of torture.
12 THE CHAIR: For purposes of
13clarity, maybe we should take the time so that he
14can read the document. I think it may be important
15enough.
16 MS. RICHARDS: Yes, or fully and
17fairly characterize that the decision at the time,
18transfers had been ceased. So just to be clear.
19 MR. McGARVEY: Yes.
20 THE CHAIR: Because you are going
21to rely on the document, I think we should take the
22time for him to read it.
23 MR. McGARVEY: Fair enough.
24 MS. RICHARDS: I guess my only
25comment on that is certainly Lieutenant-Colonel
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1Sansterre is being as helpful as he can. He's
2already said he hasn't read this document.
3 Commission counsel is asking him
4to hypothesize, and I think he is being as helpful
5as he can, but I am not sure how helpful that
6information is to the Panel when you are asking a
7witness to hypothesize or guess.
8 THE CHAIR: I think we will wait
9and see at the end of it. Whichever documents you
10think he should read, if we -- whether it be
11Noonan's affidavit or Mactavish's decision, we can
12take 20 minutes and give the Lieutenant-Colonel
13time.
14 MR. McGARVEY: That might be a
15good idea to allow him the opportunity to do that.
16 THE CHAIR: I think it is fair.
17 MR. McGARVEY: Thanks.
18 THE CHAIR: We will adjourn, we'll
19say until -- in fairness to the witness, say until
2020 to 11:00 to give him ample time to review them.
21--- Recess at 10:10 a.m.
22--- Resuming at 10:52 a.m.
24 THE CHAIR: Thank you.
25--- Upon resuming at 10:56 a.m.
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3 BY MR. McGARVEY:
4 Q. Thank you, Colonel Sansterre,
5and obviously, you know, given that length of time,
6we are not expecting you to have an encyclopedic or
7textbook knowledge.
8 A. Thank you.
9 Q. But I hope we can just
10advance a little bit of the questioning as a result
11of your review.
12 Maybe I could back up one step to
13establish: Did you in fact at some point, when
14reviewing General Occurrence 6918, review Colonel
15Noonan's affidavit or portions thereof? Do you
16recall?
17 A. I don't recall.
18 Q. But it was scanned into the
19SAMPIS records that would have been available for
20anyone reviewing that particular general
21occurrence?
23 Q. I took you to several
24paragraphs of the decision, the injunction
25decision, which is in Exhibit P-9, tab 42. I think
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1the last one I had read was number paragraph 87.
2 If I could just ask you, having
3had a chance to review Madam Justice Mactavish's
4commentary about the complaints of prisoner abuse
5that were received between May 3rd, 2007 and
6November 5th, 2007, would you have liked, on
7reflection, to have had more information at your
8disposal before finishing 6918 than simply Colonel
9Noonan's affidavit?
10 A. Having an opportunity to
11review this now, I point to section -- to paragraph
1230 and I wonder. I assume that is a typo in the
13date? It says November 6th, 2008 is when the
14transfers ceased.
15 I assume that is 2007, because the
16next paragraph talks about, as a result of the
17receipt of this allegation, no detainee transfers
18took place after November 5th.
19 Q. Yes. I would think that is a
20typo; that's correct.
21 A. Okay. Having reviewed this
22and taking particular note of paragraph 91 --
23 Q. Yes.
24 A. -- which, in summary, says:
25 "The allegations of
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1 mistreatment occurring in the
2 period between May 3 and
3 November 5 were allegedly
4 investigated, and found to be
5 without merit. Even though
6 Afghan authorities considered
7 allegations to be
8 unsupported..."
9 There were additional preventive
10measures taken by the Canadian Forces.
11 My read of this is, on the 5th of
12November, the commander in theatre was given
13reports on allegations of mistreatment, and on the
146th he ceased transfers.
15 So none of what I have read or
16skimmed through has given me cause to believe or
17suspect that the commander knowingly or willingly
18would have given any detainees over to the Afghan
19authorities to be tortured.
20 Q. Fair enough. With respect to
21the suggestion in paragraph 91 that you just
22referred to, that allegations of mistreatment were
23investigated and found to be without merit, was
24that, to your knowledge, done by the National
25Investigation Service?
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1 A. No, it was not.
2 Q. Do you know if it was done by
3any military police officer if it wasn't the NIS?
4 A. No, I don't.
5 MS. RICHARDS: It says right in
6there it was done by the Afghan authorities.
7 BY MR. McGARVEY:
8 Q. So would it be your evidence,
9then, based on paragraph 91, that on the basis of
10Afghan authorities' reassurances, there would be no
11cause to take further steps to investigate these
12matters?
13 A. Can you say that again,
14please?
15 Q. Paragraph 91, as my friend
16quite aptly points out, indicates that they were
17investigated and it appears to be their view that
18they were unsupported.
19 Does that conclude the matter,
20from your perspective, that if Afghan authorities
21say there was no support for this, there is no
22cause for investigation by the NIS into the
23circumstances?
24 A. Well, I don't have the
25jurisdiction to go investigate what happens in
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1Afghan jails, so I am not really sure what you are
2getting at. I'm sorry.
3 Q. Well, no, but you can
4investigate the orders to transfer, and there were
5allegations that abuse occurred post-transfer.
6 And I think your answer to a
7question earlier was that you can, of course,
8investigate facts in Afghanistan even though you
9can't take jurisdiction to proceed with any kind of
10legal proceedings vis-à-vis Afghan nationals or
11non-CF Code of Service Discipline covered
12personnel.
13 So my question would be, first of
14all: Did you or anyone at the NIS, to your
15knowledge, review the Afghan investigations to
16confirm whether the allegations were unsupported?
17 A. No, no.
18 Q. And so would there be any
19cause to, in your view, second-guess an
20investigation by the Afghan authorities into
21allegations of abuse by the Afghan authorities?
22 A. With the absence of clear
23evidence of all torture, abuse, I guess it wouldn't
24be my job to second-guess, no.
25 Q. Now, with respect to this
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1decision, as well, there are some further
2paragraphs, 111, 112 and 113, that I asked you to
3review.
4 Madam Justice Mactavish indicates
5that:
7 applicants is very troubling,
8 and creates real and serious
9 concerns as to the efficacy
10 of the safeguards that have
11 been put in place thus far to
12 protect detainees transferred
13 into the custody of Afghan
14 prison officials by the
15 Canadian Forces.
16 "As a result of these
17 concerns, the Canadian Forces
18 will undoubtedly have to give
19 very careful consideration as
20 to whether it is indeed
21 possible to resume such
22 transfers in the future
23 without exposing detainees to
24 a substantial risk of
25 torture.
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1 "Careful consideration will
2 also have to be given as to
3 what, if any, safeguards can
4 be put into place that will
5 be sufficient to ensure that
6 any detainees transferred by
7 Canadian Forces personnel
8 into the hands of Afghan
9 authorities are not thereby
10 exposed to a substantial risk
11 of torture."
12 Madam Justice Mactavish makes
13those comments, having already commented that
14Afghan authorities found that the particular
15allegations, in their view, were not supported.
16 Would you still think, having read
17her position, that she has ongoing concerns that it
18may not be as straightforward just to simply say,
19If the Afghan authorities have reviewed it, it is
20not up to me to further review it?
21 A. I mean, nowhere in the
22document do I have clear evidence of any of this.
23And I said I would need clear suspicion that the
24commander, you know, knowingly and willingly
25transferred them knowing. I know on November 5th
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1he was given some information and he ceased the
2transfers on November 6th.
3 I know they put further measures
4into place, which are obviously not a National
5Investigation Service purview, with human rights
6people going to visit the jails.
7 Having reviewed this, I just can't
8see where else I would investigate.
9 Q. Now, she does continue, in
10fairness to you, at paragraphs 118 -- and I don't
11think I took you to these, but 118 and 119 and 120,
12she does indicate that even Amnesty International
13and the BC Civil Liberties Association conceded
14there are scenarios under which transfers could
15potentially take place in the future.
16 So, in fairness to you, there are
17circumstances where maybe the concerns could be
18alleviated; fair enough?
19 A. Yes.
20 Q. I asked you to review the
21decision of March 2008 that follows this, and I
22think it is -- I am just trying to find the date of
23the release. It appears to be March 12th, 2008,
24from the top the first page, at tab 43 of the same
25volume. And I asked you to take a look at
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1paragraphs, I think I said, 82 and 83.
2 Now, paragraph 81, she notes that
3transfers resumed as of February 26th, 2008, and at
4paragraph 82, she notes.
6 applicants clearly establish
7 the existence of very real
8 and serious concerns as to
9 the effectiveness of the
10 steps that had been taken
11 prior to November 5, 2007 to
12 ensure that detainees
13 transferred by the Canadian
14 Forces are not mistreated."
15 And at paragraph 83:
16 "While the Canadian Forces
17 have implemented additional
18 measures designed to reduce
19 the risk to detainees
20 transferred into the custody
21 of Afghan authorities since
22 November 5, 2007, it is not
23 necessary for the purposes of
24 this motion to pass judgment
25 on the efficacy or
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1 sufficiency of these
2 additional protective
3 measures."
4 First of all, is it clear in your
5mind that the concern is not transfer to a
6guarantee of abuse or torture, but transfer to a
7substantial risk of torture or abuse? Do you
8understand?
9 A. Well, I would assume that if
10you have evidence that there is torture or abuse
11going on there, then you have put the people at
12risk that you transferred there, I guess.
13 Q. Right. I am just wondering
14what your understanding would be when you are
15confronted with a suggestion, as is suggested in
16the June 12th complaint to this Commission, that
17the NIS failed to investigate these transfer orders
18and the persons who made them.
19 Can you tell us what it would
20entail, in terms of an assessment of the risk of
21torture? In other words, how high is the bar set
22in terms of risk, from your perspective, when you
23look at the legality of these transfer orders?
24 A. Well, I mean, on the face of
25it, we would need some clear, you know, evidence,
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1the time, date, place, who the individuals were and
2the assaults or abuse that had taken place.
3 Q. That would be information,
4factual information, that would largely rest with,
5no doubt, Afghan authorities, correct, the post
6transfer abuse issues?
7 A. Correct.
8 Q. But would it be fair to say
9that in terms of assessing the risk of torture or
10abuse, that a look at the history is also relevant?
11 A. Yes.
12 Q. Now, can you advise whether
13you, yourself, reviewed any of the documentation
14that comes from such places as international human
15rights organizations or the United Nations or the
16US State Department concerning allegations of abuse
17of detainees by Afghan authorities?
18 A. No, I didn't personally
19review those documents.
20 Q. In your view, since what
21we're talking about is risk and risk can be
22assessed, at least in part, based on prior conduct,
23do you think reports of that nature would be
24helpful in assessing whether someone was
25transferred to a risk of torture?
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1 A. Those documents could be
2useful, yes.
3 Q. I asked you to review
4paragraphs 343 and 344 of Madam Justice Mactavish's
5second decision there, and in this she notes that
6she found in this case -- and this is what the case
7was about is: Does the Charter of Rights and
8Freedom, the Canadian Charter, apply to Canadian
9transferred detainees?
10 And she concludes that it does
11not, but she also indicates that:
12 "... does not apply does not
13 leave detainees in a legal
14 'no-man's land', with no
15 legal rights or protections.
16 The detainees have the rights
17 conferred on them by the
18 Afghan Constitution. In
19 addition, whatever their
20 limitations may be, the
21 detainees also have the
22 rights conferred on them by
23 international law, and, in
24 particular, by international
25 humanitarian law.
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1 "It must also be observed
2 that members of the Canadian
3 Forces cannot act with
4 impunity with respect to the
5 detainees in their custody.
6 Not only can Canadian
7 military personnel face
8 disciplinary sanctions and
9 criminal prosecution under
10 Canadian law should their
11 actions in Afghanistan
12 violate international
13 humanitarian law standards,
14 in addition, they could
15 potentially face sanctions or
16 prosecutions under
17 international law."
18 Now, maybe I could ask the
19question this way. The people whose acts in
20question are subject to the allegations of the
21commanders as disclosed in the complaint from
22Amnesty International on June 12th; right?
23 A. Say that again, please?
24 Q. The people whose acts are
25being called into question are the commanders who
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1issued transfer orders, first of all; correct?
3 Q. And the military police
4officers who failed to investigate whether those
5orders were in compliance with the legal standards
6expected; correct?
7 A. Yes.
8 Q. Now, would you agree that it
9is the NIS that has the jurisdiction to investigate
10those issues; in other words, whether the
11commanders did follow through on taking into
12account their international legal obligations when
13transferring these detainees?
14 A. Yes, I would agree that would
15be an NIS-mandated investigation.
16 Q. And could you comment on
17whether there is any other mechanism whereby this
18can be sort of policed or enforced? In other
19words, it might seem to many that the NIS is the
20only body that realistically is going to be looking
21at the legitimacy and legality of commanders'
22orders. Do you agree with that?
23 A. Well, I think the command
24structure, every commander -- most commanders have
25a commander, and their commanders could review the
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1orders and determine that they weren't proper.
2 Is that what you're -- I am not
3sure --
4 Q. I suppose the question might
5be put this way. If the NIS doesn't place the
6legality of these orders under scrutiny for whether
7they comply with the law, is there anyone else who
8would?
9 A. The chain of command could.
10 Q. So the alternative would be
11to have the chain of command investigating within
12the chain of command?
13 A. Well, the commander in
14Afghanistan would have a chain of command back to
15CEFCOM. So the CEFCOM commander is who I would
16refer to, I guess. The CEFCOM chain of command
17could.
18 Q. Would you agree that part of
19the reason that the National Investigation Service
20is independent of the chain of command is to
21maintain an independent perspective when it comes
22to this kind of investigation, this sensitive thing
23where commanders might be investigating other
24commanders or might be looking into the legality of
25orders of other commanders?
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1 A. That's right. We are
2independent in the chain of command. I just said
3there could be occasion that, you know, the
4commanders could review it and make determinations
5from that.
6 Q. It is the NIS, though, that
7would be the independent mechanism for looking at
8it from outside the chain of command itself; is
9that fair to say?
10 A. Yes.
11 Q. I asked you about whether you
12had reviewed international humanitarian
13organizations' reports. Maybe I could ask you:
14Have you had occasion to review any of the site
15visit reports reporting back from Afghanistan in
16relation to detainees who had been transferred?
17 A. No, I haven't.
18 Q. When the conduct that we are
19concerned with is transfer of detainees between May
202007 and June 2008, do you think it would be
21appropriate, in the face of allegations of
22illegality, to review reports that came from the
23prisons themselves, site visit reports?
24 A. If you're conducting an
25investigation into that, you would gather as much
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1documentation as you could.
2 Q. When you became aware of the
3-- maybe I could ask you: When did you become
4aware of the June 12th complaint by Amnesty
5International of the failure to investigate?
6 Were you aware of that from the
7outset of your taking over the command of the
9 A. I am not absolutely certain,
10no.
11 Q. When faced with an allegation
12of failure to investigate, did you look at what, in
13fact, had been investigated over that period of
14time and satisfy yourself, one way or another,
15whether there was any substance to the
16complainant's complaint?
17 A. Well, I knew that this matter
18was being looked at by the MPCC, and I knew they
19were having a public interest hearing, and I knew
20they were going to review the matter. So --
21 Q. It would still be the
22jurisdiction of the NIS, though, to decide whether
23there is any substance to the underlying
24allegations of illegal transfer orders and that
25kind of thing; correct?
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1 In other words, the MPCC doesn't
2have the authority to investigate the commanders;
3right?
4 A. That's correct, yeah.
5 Q. Since that complaint was
6issued in June of 2008, have you taken any steps to
7further look into the substance underlying the
8complaint; that is, the legality of those transfer
9orders?
10 A. No, we haven't.
11 Q. Could you advise us whether
12you think there is any reason to, or not?
13 A. At this time, I don't think
14there is any reason to, no.
15 Q. I would like to ask you a
16little bit about what -- I guess I might put it
17this way -- what test you would apply to the issue
18of whether a complaint should be investigated, not
19whether it should conclude wrongdoing or conclude
20there are reasonable and probable grounds to lay a
21charge, but just what does it take to spur an
22investigation, in your view, for a member of the
23NIS?
24 A. In this case, particularly?
25 Q. Sure.
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1 A. Suspicion the commander knew
2that he was transferring detainees and that they
3were being abused, that he had knowledge of them
4being -- that they would be abused after he was
5transferred.
6 Q. So suspicion that the
7commanders knew that they would be abused?
8 A. Or that there was a great
9potential, yes.
10 Q. I think if you turn -- I
11don't know if it is on your desk, actually, the
12collection that was just filed this morning,
13Collection U.
14 I am at tab 5 of that. This is a
15letter. If you look at the end, it is under the
16signature of Brigadier-General LaRoche, dated 25
17November 2007.
18 In the first paragraph, he
19outlines what looks like a test to determine the
20appropriateness of transferring. He says, "The
21discretion to authorize". This is the second
22sentence --
23 A. Yes.
24 Q. -- of the first paragraph:
25 "The discretion to authorize
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1 the detainee transfer may
2 only be exercised where there
3 are not substantial grounds
4 for believing that there is a
5 'real risk' that a detainee
6 would face subsequent abuse
7 or mistreatment if
8 transferred." (As Read)
9 Then there is a short end to that
10sentence which is blanked out:
11 "The only information that I
12 have at my disposal upon
13 which to base such a decision
14 are the..."
15 And there is a blanked out
16portion:
17 "... message reports." (As
18 Read)
19 Brigadier General LaRoche seems to
20be indicating that he can only authorize transfer
21if there are not substantial grounds for believing
22there is a real risk that a detainee would face
23subsequent abuse or mistreatment.
24 In other words, he's got to be
25satisfied that there is not a substantial basis for
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1ascertaining a real risk, not that he has to
2positively believe there is no real risk.
3 Do you understand the distinction,
4what I am trying to get at?
5 A. No.
6 Q. Okay. I suppose it is a
7question of onus. My question to you might be
8this. If the commander was uncertain as to whether
9there is a real risk, they don't know, they don't
10have enough information to base -- to come to an
11assessment of the actual risk -- would you think
12they are authorized to continue transferring, or,
13if they don't know the risk, would they be obliged
14to cease transferring, based on your understanding
15of the obligations of a commander in these
16circumstances?
17 A. I would say they shouldn't
18transfer if they believe there is substantiation
19there is a risk.
20 Q. Shouldn't transfer if there
21is evidence of a risk?
22 A. If there is substantiation of
23that, yeah.
24 Q. What General LaRoche seems to
25be saying is he can only transfer if there is not
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1substantial ground for believing there is a real
2risk. In other words, you have to discount the
3prospect of real risk before you are authorized to
4transfer?
5 A. In all fairness to the
6General, I don't really -- his wording is very
7confusing to me, in all fairness to him.
8 Q. Fair enough. Would it be
9fair to say that it would assist you, as an NIS
10commander, and your investigators to have clarity
11on exactly what the test is when you are looking at
12this kind of issue?
13 A. The test for me, again, is if
14they transfer and they have substantial -- they
15have information that there is a real risk and they
16still transfer, then that would be the test.
17 Q. General LaRoche says that the
18only information he had available at his disposal
19upon which to base such a decision would be certain
20message reports.
21 You have already indicated, I
22think, that you didn't see any site visit reports
23yourself?
24 A. That's correct. I have not
25seen the reports.
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1 Q. Have you, in the course of
2any of your professional dealings, sought to get
3access to those reports?
4 A. No, I haven't.
5 Q. In the face of the Amnesty
6complaint of June 2008, do you think it would have
7been helpful to you to assess the Commander's
8orders if you had had such things as site visit
9reports? Maybe they come back saying that there is
10no problem, and you could allay any concerns that
11the Commander is making illegal orders?
12 A. I believe the test here is --
13what he's saying is he has seen these site visit
14reports and ceased transfers some period of time in
15November, which I believe to be 2007. And so he
16took some action based on seeing these site
17reports.
18 Q. As an NIS commanding officer
19and as a military police officer, are you given any
20training or guidance specifically on the issue of
21this kind of legal test?
22 I mean, I think it is -- I think I
23agree with you that it is not entirely clear when
24you hear -- when you read what General LaRoche says
25and when I hear what you say, it is not an easy
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1conceptual matter to sort out.
2 Do NIS members get any specific
3training on this issue of what is the test for a
4legal order of transfer?
5 A. No. But, I mean, we're in
6close contact with the legal branch and we get
7legal advice as we do our files. As we do our
8investigations, we get legal advice from military
9prosecutors or Department of Justice lawyers, if
10that is the case.
11 Q. Okay. Was the decision to
12not engage in investigations following the Amnesty
13June 2008 complaint based on legal advice, or was
14it based on your assessment of the facts as you
15knew them?
16 MS. RICHARDS: What advice is
17protected by privilege. Mr. McGarvey's question
18would require him to disclose the nature of that
19advice, which is prohibited.
20 MR. McGARVEY: I am not asking the
21nature of the advice. I am just asking whether his
22decision was based on advice or based on his
23assessment of facts.
24 MS. RICHARDS: The way the
25question is framed, 'Was your decision not to
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1investigate based on legal advice', would tend to
2reveal the nature of the legal advice.
3 BY MR. McGARVEY:
4 Q. Perhaps I could phrase it
5this way. Was your decision to not investigate the
6transfer orders following the June 12th Amnesty
7complaint based solely on an assessment of the
8facts as you knew them?
9 MS. RICHARDS: I am not sure,
10given the previous question, that that makes it any
11better. It is still leading to the ultimate
12question, which is: What was the nature of the
13legal advice, if any, provided?
14 He can ask whether or not they
15sought and obtained legal advice, but I think that
16is as far as he is permitted to go.
17 MR. McGARVEY: Okay. Did you seek
18legal --
19 THE CHAIR: I would agree. Just
20ask for relative to legal advice. The other is
21kind of -- I agree with Ms. Richards it could
22reveal the answer.
23 BY MR. McGARVEY:
24 Q. In the wake of the June 2008
25Amnesty complaint, did you receive legal advice as
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1to follow-up?
2 A. I did not personally receive
3legal advice, no.
4 Q. Institutionally perhaps we
5could say, since you are the commander of the NIS,
6did the NIS receive legal advice on this issue in
7the wake of the June 12th, 2008 complaint?
8 A. Not that I'm aware of.
9 THE CHAIR: So that would mean
10that the decision was solely based on what?
11 MS. RICHARDS: I don't think you
12can go there, with respect. The witness has said
13not that he is aware of. He only took over as of
14August 2008. So I think it would be dangerous to
15jump to conclusions one way or the other.
16 MR. McGARVEY: Well, I don't want
17to jump to conclusions. Maybe I could frame it
18this way.
19 BY MR. McGARVEY:
20 Q. The complaint from Amnesty
21that we are dealing with comes from June 12th,
222008. You take over the National Investigation
23Service in August of 2008, and there has been no
24specific investigation by the NIS into the
25allegations raised by Amnesty International on June
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112th, 2008; is that fair to say?
2 A. Yes, it is.
3 Q. And you have not received
4legal advice institutionally at the NIS on that?
6 Q. You weren't ordered not to
7engage in such an investigation by any superior
8officers, such as the Canadian Forces Provost
9Marshal or anyone above that, were you?
10 A. Absolutely not.
11 Q. If I could have a brief
12indulgence?
13 I would like to go back to one of
14the specific investigations of Operation Centipede,
15if I could. It is actually a pair of
16investigations that were concluded simultaneously,
17and they're in volume 2 of the NIS witness books at
18tabs 5, 6 and 7.
19 Just so that we're all teed up and
20ready, the newspaper article in question, with
21respect to one of these, is in the main witness
22documents. It is in volume 3 at tab 6 of the main
23witness documents. So the actual newspaper article
24itself -- sorry. It should be at tab 5, not tab 6,
25April 23rd, 2007.
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1 So Occurrence Number 2008-6920, at
2tab 5 of the NIS witness books, volume 2, deals
3with allegations in an article published 23rd of
4April 2007. Are you familiar with that
5investigation in that article?
6 A. Yes.
7 Q. Okay. And this article
8discloses certain allegations of abuse by Canadian
9transferred detainees after they were transferred;
10correct?
11 A. I would have to review the
12article closer, in closer detail, but --
13 Q. Okay. Well, let's go from
14your general occurrence, then. General Occurrence
156920 outlines the general nature of these
16allegations, I think, in paragraph 1 at page 5 of 5
17of tab 5.
18 A. Paragraph -- sorry, say
19again? Paragraph?
20 Q. Page 5 of 5, tab 5 of the NIS
21witness book.
22 A. They're both tab 5. That's
23why I was confused. My apologies.
24 Q. Oh, sorry. This is the
25general occurrence that you would have reviewed, I
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1guess, before -- would you have reviewed this
2before signing off on Operation Centipede, do you
3think?
4 A. I would have reviewed it
5before I sent out that covering letter saying, Here
6is all of the general occurrences that Op Centipede
7is; not necessarily when this report was signed
8off.
9 Q. Fair enough. Just to be
10certain, 6920, this investigation, was part of
11Operation Centipede?
12 A. Yes, it was one of the
13investigations part of Op Centipede; correct.
14 Q. It deals with allegations
15from two Globe and Mail articles, the one that I
16have referred to and another one that is further
17back in the NIS witness book, that relate to
18allegations of abuse of prisoners who were in
19Canadian Forces' custody and who were transferred
20to Afghan authorities and were then abused.
21 Is that a fair characterization of
22the nature of the allegations in there?
23 A. Oh, of the media articles?
24 Q. Yeah.
25 A. Correct.
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1 Q. Now, we have heard some
2evidence about this investigation from other
3witnesses, but from what we have -- and maybe you
4could confirm this -- the occurrence was
5essentially concluded in November 2008 by an
6officer, I think Kevin O'Sullivan.
7 A. Yes. The concluding remarks
8were drawn up that date; correct.
9 Q. Can you just explain who
10Kevin O'Sullivan would be? I am not even sure of
11his rank so I failed to address him properly.
12 A. Kevin O'Sullivan was a
13Captain Lieutenant (Navy). He was the operations
14officer at central region at the time.
15 Q. Okay. His conclusion in this
16occurrence is at paragraph 2, and he says:
17 "Although these newspaper
18 journalists are reporting
19 that they have interviewed
20 former Afghan captives or at
21 least received information
22 concerning their treatment at
23 the hands of the Afghans,
24 considering the general rules
25 of evidence and the
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1 inadmissibility of statements
2 as they pertain to hearsay
3 information and the lack of
4 any other credible evidence,
5 there is no satisfactory
6 justification to continue
7 this investigation." (As
8 Read)
9 Do you know the basis upon which
10Captain O'Sullivan would have made that assertion
11that this should not be pursued further because of
12the inadmissibility of evidence and the rules of
13evidence pertaining to hearsay?
14 A. No, I don't. No.
15 Q. Having reviewed this
16occurrence, do you know if there were any other
17investigative steps other than just reading the
18newspaper article itself?
19 A. No, I don't.
20 Q. From what we have in General
21Occurrence 6920, at the bottom of the SAMPIS
22printout we've got page numbers, not our page
23numbers, but page zero of 3, page 1 of 3, 2 of 3, 3
24of 3, and his concluding remarks appear to be the
25end of it.
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1 Does that indicate to you that
2this is the totality of that SAMPIS record for
32008, 6920, if we've got pages 1, 2 and 3 of 3?
4 A. I can't say for sure. I
5don't know.
6 Q. I am curious. How could you
7sign off on this and be assured of its thoroughness
8if you can't know if this is all that there is?
9 A. I don't want to say that this
10is all there is and have, you know, other text
11boxes be out there. I don't really know. This
12looks like something, a report -- this would be the
13report that would be generated, an MPIR complaint
14and a conclusion.
15 So whether there was other text
16boxes put in there, I don't really know and I can't
17conclude that today. I would have to go -- I would
18have to go research that.
19 Q. In any event, there is no
20indication in the concluding remarks of any further
21investigative steps, beyond reviewing the article
22itself. Would you agree with that?
23 A. There is no other indication
24of other investigative steps.
25 Q. Would you expect normally, in
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1concluding remarks, if there were investigative
2steps taken, that there would be at least some
3outline of what those steps were?
4 A. Yes.
5 Q. After the sentence I read in
6the concluding paragraph, he says -- Captain
7O'Sullivan says:
8 "Likewise, even if these
9 reports were somehow deemed
10 to be credible, the
11 allegations of ill treatment
12 are directed against the
13 Afghan authorities. This
14 alone excludes our
15 jurisdictional interests in
16 the mandate of the CFNIS. As
17 such, there is no
18 satisfactory justification to
19 proceed with an investigation
20 that focusses on the actions
21 of the Afghan authorities and
22 their handling of prisoners."
23 (As Read)
24 Now, if you would turn to the
25article itself, if you look at the page 4 of 5, at
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1the bottom of page 4 there is a heading, "Rules of
2Engagement":
3 "Article 12": Prisoners of
4 war are in the hands of the
5 enemy Power, but not of the
6 individuals or military units
7 who have captured them.
8 Irrespective of the
9 individual responsibilities
10 that may exist, the Detaining
11 Power is responsible for the
12 treatment given them.
13 Prisoners of war may only be
14 transferred by the Detaining
15 Power to a Power which is a
16 party to the Convention and
17 after the Detaining Power has
18 satisfied itself of the
19 willingness and ability of
20 such transferee Power to
21 apply the Convention."
22 Then they mention at the top of
23page 5 the third Geneva Convention.
24 So 6920 is an investigation into
25the allegations in this article. The article makes
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1reference to international law obligations.
2Captain O'Sullivan's conclusions suggest there is
3no jurisdictional interest in the allegations here.
4 Can you comment on whether you
5agree with him that there is no international legal
6obligation that may be raised by and subject to
7further investigation by such allegations?
8 A. Well, I can certainly agree
9that we don't have jurisdiction to investigate
10Afghani people in Afghanistan.
11 Q. I think we are all agreed on
12that, yes, but you do have jurisdiction to
13investigate whether Canadian authorities had
14satisfied themselves of the willingness of the
15detaining power to adhere to the Geneva Convention,
16at least if this article is accurately quoting that
17section of the Convention?
18 A. Yes. We have jurisdiction to
19investigate the commander or persons subject to the
20Code of Service Discipline.
21 Q. I suppose the concern is the
22article itself raises this prospect by referring to
23the Geneva Convention, but your investigator
24doesn't seem to look at that issue. Does that give
25you any concern?
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1 A. I mean, again, I haven't read
2the article in its entirety and I don't know if
3there is clear evidence they were Canadians --
4captured by Canadians when they were -- when they
5were transferred and detained.
6 Q. Well, at the very first page
7of the article, it starts by saying:
8 "Afghans detained by Canadian
9 soldiers and sent to
10 Kandahar's notorious jails
11 say..."
12 And so on. So I think it is a
13given that the article is about Canadian detainees
14who are then transferred. That's the starting
15point, I think.
16 MS. RICHARDS: I think to be fair,
17allegedly.
19 BY MR. McGARVEY:
20 Q. We're only talking about
21allegations. We have a newspaper article. The
22newspaper article is not a court.
23 If you receive information from a
24source --
25 THE CHAIR: Have you read the
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1article?
2 THE WITNESS: Not recently, no,
3sir.
4 THE CHAIR: Why don't you take a
5minute and just review the article?
6 MR. WALLACE: Mr. Chair, if it
7would be possible, perhaps, if the witness would
8just read it outside, because I would like to make
9a couple of comments that I think are probably
10better made in his absence?
11 THE CHAIR: Any objection to that?
12 MR. WALLACE: If he is going to
13take a few minutes, anyway.
14 MR. McGARVEY: No. I have no
15objection. Maybe he could take the article and
16read it while we are discussing that.
17 MR. WALLACE: That's what I was
18going to suggest.
19 THE CHAIR: Okay, that's fine.
20The witness can be excused. How long are your
21comments going to be, before you go, sir?
22 MR. WALLACE: Oh, very brief.
23 THE CHAIR: Okay, thank you. We
24will just be a moment, sir.
25--- Lieutenant-Colonel Sansterre withdraws from
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1hearing room at 11:50
2 MR. WALLACE: Mr. McGarvey's last
3line of questions was structured, if I remember it
4correctly, the investigation 6920 was generated by
5the Globe and Mail articles. The article makes
6reference to rules of engagement, and then in
7putting paragraph 2 of Mr. O'Sullivan's or Captain
8O'Sullivan's remarks, says he doesn't appear to
9have considered the possibility of violations of
10the rules of engagement, which include the
11violations of the Geneva Convention.
12 But if you look at paragraph 3,
13certainly in my reading of it, it is certainly
14capable of that interpretation, and I just think it
15should be fairly put to the witness that that
16possibility seems to be raised in paragraph 3.
17More specifically, he says:
18 "Upon reflection, it seems to
19 be obvious that there will be
20 additional reports in the
21 far-reaching future that will
22 address the manner in which
23 Afghan authorities handled
24 their Afghan captives. To
25 that end, any pending media
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1 reports/articles concerning
2 the treatment of Afghan
3 prisoners by Afghan
4 authorities, which are void
5 of any direct accusations of
6 criminal wrongdoings of
7 Canadian Forces members, will
8 not be investigated by this
9 office." (As Read)
10 So as I read that, what he is
11saying is, If there is an allegation, which could
12include that a Canadian Forces member violated the
13Geneva Convention, that is within our jurisdiction
14and we will investigate it.
15 THE CHAIR: Mr. McGarvey?
16 MR. McGARVEY: Well, of course I
17am not finished questioning Lieutenant-Colonel
18Sansterre and I was going to take him to the final
19paragraph, of course, to ask his interpretation of
20that, because it has been raised previously and
21will be raised with this witness.
22 MR. WALLACE: I guess my objection
23is it is not the fact that he is asking the
24questions. It is the timing of the questions. He
25is framing the question as if the issue is closed;
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1that is, that Captain O'Sullivan didn't consider
2the possibility of a violation of international
3law, when, in fact, it certainly, to my reading,
4does suggest that he did consider that.
5 So I think in fairness to the
6witness, the whole thing should be put to him, and
7then ask the question. He may say, I didn't
8consider that.
9 THE CHAIR: Ms. Richards?
10 MS. RICHARDS: That, and in terms
11of framing questions to the witness and in this
12article, this article refers to the Geneva
13Convention and prisoners of war. As a matter of
14law, these were not prisoners of war. These were
15detainees, and this portion of the Geneva
16Convention did not apply.
17 So my concern is putting to the
18witness a question that is legally incorrect. I
19think we have to be very careful about doing that
20and ensuring, in fairness to the witness, that we
21are giving him the full picture or the full
22circumstances.
23 MR. McGARVEY: The issue isn't
24whether conclusively in law this witness did or did
25not take certain steps. It is whether it raises
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1questions he should have seen fit to investigate.
2If he investigated and found that he agrees with
3the legal conclusion advanced by my friend that
4they're not prisoners of war and the Geneva
5Convention does not apply, fair enough.
6 I note there are documents in the
7exhibits, which I can take the Panel to, which say
8that Canadian-transferred detainees will be treated
9as though the Geneva Convention applies.
10 So I think it may, in fairness to
11the witness, be a subject of legal lack of clarity.
12There is no question of that. But that doesn't
13mean that seeing it in an article suggests it is
14the end of the story.
15 Of course I want to be fair to the
16witness and allow him the opportunity to answer
17these questions. I am not finished my questioning.
18I take Mr Wallace's point and I will canvass the
19whole thing so we have the whole thing in context
20with him.
21 THE CHAIR: I think to satisfy Mr
22Wallace's objection, maybe the first couple of the
23order of the questions and to clarify as we go on
24to point number 3. Is that fine, Mr. Wallace?
25 MR. WALLACE: Yes.
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1 THE CHAIR: Ms. Richards?
2 MS. RICHARDS: My only point is
3that in fairness to the witness, that counsel has
4to make clear that there is an issue about whether
5or not the Geneva Convention applies, and he can
6ask him those questions. But today, he has been
7putting the questions to him as though the Geneva
8Convention did apply.
9 THE CHAIR: Is that fine, Mr.
10McGarvey?
11 MR. McGARVEY: Yes, I will follow
12up with the witness on those issues.
13 THE CHAIR: Okay. How much longer
14do you think you will be with the witness? Once
15again, it doesn't matter to me. We can be here
16until midnight. We are fine.
17 MR. McGARVEY: I would think
18probably approximately a half hour, maybe less.
19 It may be prudent, if he wants
20to -- you know, I can finish up with this
21particular general occurrence and that might be a
22good place to break. It is really only these
23last couple --
24 THE CHAIR: Let's bring him in to
25finish this, in fairness to the witness. Then when
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1you are done that, we will have a break and you can
2finish after lunch, if that's fine with everyone.
3 Okay, Madame Registrar.
4--- Lieutenant-Colonel Sansterre returns to hearing
5 room at 11:55 a.m.
6 THE CHAIR: Sorry, we had a couple
7of questions just to go through and we are ready to
8go.
9 BY MR. McGARVEY:
10 Q. Thank you. Now, just to make
11sure we understand, in fullness, what might have
12been considered, in your view, by Captain
13O'Sullivan, there is a third paragraph in the
14concluding remarks where he states:
15 "Upon reflection, it seems to
16 be obvious that there would
17 be additional reports in the
18 far-reaching future that will
19 address the manner in which
20 Afghan authorities handle
21 their Afghan captives. To
22 that end, any pending media
23 reports/articles concerning
24 the treatment of Afghan
25 prisoners by Afghan
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1 authorities which are void of
2 any direct accusations of
3 criminal wrongdoing of CF
4 members will not be
5 investigated by this office.
6 This file is concluded."
7 So reflecting on the totality of
8his concluding remarks in those two paragraphs, do
9you feel that any international legal
10considerations were addressed with respect to the
11conduct of Canadian Forces members by Captain
12O'Sullivan?
13 A. I don't know.
14 Q. And, in fairness, the article
15itself asserts that the Geneva Convention may --
16perhaps it doesn't assert. It cites the Geneva
17Convention on prisoners of war at the end.
18 Do you know whether it is clear
19whether the Geneva Convention is applicable in the
20circumstances we find ourselves in in Afghanistan
21to the detainees we take, and then transfer? Is it
22a matter that is clear to National Investigation
23Service members how and if the Geneva Convention
24applies?
25 A. Personally, if you are asking
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1me, I would say it applies, yes.
2 Q. I am curious about the third
3paragraph which I just read, and particularly the
4sentence which states that:
5 "... any pending media
6 reports or articles
7 concerning the treatment of
8 Afghan prisoners by Afghan
9 authorities which are void of
10 any direct accusations of
11 criminal wrongdoing by CF
12 members will not be
13 investigated by this office."
14 Was that an approach that you
15approved of? In other words, it looks like he is
16saying, If there is more media articles of this
17nature, we're not going to investigate. First of
18all, is that how you would interpret that?
19 A. I would interpret it to say
20that if there is media reports of Afghan on Afghan
21criminal wrongdoing, that, yes, that we would not
22-- we would not investigate those allegations.
23 Q. And so the focus, I take it,
24of the NIS would be on whether Canadian Forces had
25abused Afghan detainees?
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1 A. Yes. That would certainly be
2the focus, yes.
3 Q. And that statement reflects
4that as a sort of priority?
5 A. Yes.
6 Q. Okay, thank you. This may be
7an appropriate place to take the lunch break, then.
8 THE CHAIR: We will adjourn for
9lunch until 1:30. Thank you.
10--- Luncheon recess at 11:58 a.m.
11--- Upon resuming at 1:31 p.m.
14 THE CHAIR: We are ready to
15resume.
16 MR. McGARVEY: Thank you. I can
17just advise the Commission that Commission counsel
18has been provided with a document by counsel for
19the complainants which she would be proposing to
20utilize with this witness, and I think, therefore,
21it properly should be tendered as an exhibit.
22 However, I think it might be
23appropriate to wait until the end of my
24examination, and then we can canvass, because I
25think there is some issue with the timing and
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1purpose with respect to this document.
2 We will see if we can sort it out.
3If not, we can hear submissions from the parties on
4whether to accept the document at that point.
5 So although it has been given to
6us now, I would propose to deal with it following
7my examination.
8 THE CHAIR: Yes, if that's fine
9with all parties, we will deal with this at the end
10of Mr. McGarvey.
11 MS. RICHARDS: I think, as I said
12to Mr. McGarvey during the break, from my
13perspective, I understand that the complainants
14wish to put it to the witness. I can't take a
15position until I know the purpose for which they
16intend to put it to the witness.
17 So I don't think we can deal with
18it at the end of Mr. McGarvey's examination. I
19think we have to wait and see what the complainant
20does with it and how they intend to put it to the
21witness.
22 THE CHAIR: At some point, where
23we need to, will there be some discussion, then,
24without the witness?
25 MS. RICHARDS: There may or may
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1not.
2 THE CHAIR: You don't know?
3 MS. RICHARDS: There may not be an
4issue depending on the purpose it is put to the
5witness, or there may. I don't want to presuppose
6or create a problem where there may not be a
7problem. I think what we will need to do is allow
8the cross-exam to unfold.
9 THE CHAIR: Let it go.
10 MS. RICHARDS: Then we will see
11what happens.
12 THE CHAIR: Mr. Wallace?
13 MR. WALLACE: I am a proponent of
14the wait-and-see school of thought.
16 MR. McGARVEY: Very well. If we
17can have Lieutenant-Colonel Sansterre back, please?
18--- Witness resumes the stand
19 MR. McGARVEY: Thank you, sir.
20 THE WITNESS: Thank you.
21 BY MR. MCGARVEY:
22 Q. Good afternoon. I had been
23asking you questions about General Occurrence
242008-6920. There is a related or similar
25investigation, I think it is fair to say, 6921.
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1Are you familiar with that one at -- the MPIR
2synopsis is at tab 6 of volume 2 of the NIS
3materials. You've got that?
4 A. Yes.
5 Q. So this one makes reference
6to a Globe and Mail article dated March 9th, which
7apparently says that the ANA would murder the
8detainee who was turned over. The CBC was on site
9at the time and, according to the MPIR, an MP
10member handed the person over.
11 If we turn to tab 9 of that same
12volume of material, I think at tab 9 we have a
13document dated March 9th, 2007, from the Globe and
14Mail and would it be your understanding this would
15be the article in question or can you -- if you
16look at the third paragraph, it seems to describe
17the same general set of facts as are indicated in
18the MPIR?
19 A. Yes. Same set of facts,
20correct.
21 Q. Okay. This General
22Occurrence 6921 was also part of operation
23Centipede, was it?
25 Q. And there were concluding
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1remarks, which I believe are contained at tab 7.
2 Now, the concluding remarks at tab
37, if you go through them, appear to be more or
4less, if not exactly, identical to the concluding
5remarks in 6920. Would that be a fair assessment?
6 A. Yes, it would be.
7 Q. Just in terms of the dates,
8of course it says the dates of the article was
9early 2007. The dates of the concluding remarks
10would be, in both cases, November 19th, 2008; is
11that correct? I think that is at the top of the
12concluding remarks page.
13 A. Yes, that is correct.
14 Q. The conclusions in 6921
15appear to be identical to the conclusions in 6920.
16Is that something we can agree on?
17 A. They appear to be very close.
18I haven't compared each and every word, but they
19appear to be the same structure and consistent.
20 Q. The Globe and Mail article of
21March 9th, 2007 seems to disclose Canadian Forces
22personnel -- again, not firsthand information, but
23the information in the newspaper report is that
24Canadian Forces personnel handed an Afghan detainee
25over in the face of overt threats to that person,
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1at least if I read the MPIR correctly and the
2excerpt from the article itself?
3 A. Sure.
4 Q. Were that to be made out --
5in other words, if it were the case as a matter of
6fact that Canadian military personnel handed
7somebody over in the face of an overt threat to a
8detainee -- would that be something that you would
9want to investigate, in terms of the legality of
10the order or decision to hand the person over in
11the face of that overt threat?
12 A. Yes.
13 Q. Okay. Do you know what steps
14were taken to ascertain the underlying facts of the
15issues disclosed in that March 9th newspaper
16report; in other words, if anybody from the NIS
17tried to determine, when a CBC film crew was
18present, what soldiers might have been present,
19what detainee they might have transferred to
20determine whether the facts were made out?
21 A. No, I don't.
22 Q. The conclusion of this is
23again based, it appears, to some degree, on what is
24outlined in paragraph 2, the rules of evidence
25inadmissibility of statements as they pertain to
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1hearsay and lack of other credible evidence, as
2well as the jurisdictional concerns.
3 Would you agree that the
4jurisdictional concern in the March newspaper
5report, there would be jurisdiction to look into
6the acts of the Canadian Forces soldiers who turned
7the person over; is that fair to say?
8 A. Yes, it would be fair to say.
9 Q. Would you think that a
10conclusion about what a court might do with hearsay
11is an adequate basis to go no further than to read
12the newspaper article itself?
13 A. Sorry?
14 Q. Well, it appears that what
15occurred is the newspaper article was reviewed,
16certain conclusions about admissibility of evidence
17are advanced by Officer or Captain O'Sullivan, and,
18unless I am unaware of something, there are no
19further investigative steps into the underlying
20facts of this.
21 We know that the jurisdictional
22issue is answered by the fact that Canadian Forces
23personnel are present and transferring the person
24in the face -- on the allegations in the face of a
25threat. The underlying investigation -- sorry, the
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1underlying allegations are not further
2investigated, from what we can gather. The only
3reasons advanced are in these concluding remarks.
4 Can you maybe advise the
5Commission if the answers or the concluding remarks
6given here are, in your view, satisfactory in light
7of the circumstances disclosed in that March 2007
8newspaper report?
9 A. Can I just refer to the
10article for a second?
11 Q. Sure.
12 MS. RICHARDS: Just to be clear
13for the record, that 2007 newspaper report is not a
14report. It is a commentary, and I think we should
15be careful in characterizing what this document is
16and who the author of the document is, as well.
18 THE CHAIR: Any comments, Mr.
19Wallace --
20 MR. WALLACE: No. Thank you.
21 THE CHAIR: -- on this? Any
22comments?
23 MS. PASTINE: No. Thank you.
24 THE CHAIR: No?
25 THE WITNESS: Again, looking at
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1this article, there is mention of one paragraph and
2there is very -- it's very broad. There is not
3much information in this article that would lead
4you to -- there's not even timings, I don't
5believe, where, when this even occurred. It would
6be very difficult to investigate further.
7 BY MR. McGARVEY:
8 Q. Would it be feasible -- there
9is an author to this newspaper article at the top,
10Amir Attaran. And, as my friend pointed, out it
11does appear to be a commentary. Would you think
12that one investigative step might be calling Amir
13Attaran and asking if he has underlying information
14with more detail?
15 A. I mean, from my personal
16experience, the calling of media with regards to
17articles that they've put forth usually don't -- it
18is very unlikely they're going to give us any more
19information than is already there, give us a source
20or give us any more details.
21 I've -- no slight to anybody. I
22have dealt with the media on a number of occasions
23in my position and I have always, you know, asked
24of information and none was very forthcoming, so --
25 Q. Fair enough. But you don't
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1know until you ask; is that fair?
2 A. That's fair.
3 Q. Okay. I take it the same
4would have been true of 6920, that one perhaps
5could have asked the author of that, Mr. Graham
6Smith. To your knowledge, was that done?
7 A. To my knowledge, I don't know
8if it was done or not, no.
9 Q. We heard evidence last week
10concerning that issue. I take it your view about
11the likelihood of success in doing that would be
12the same with that article as it would be Professor
13Attaran's article, as well?
14 A. Yes.
15 Q. Yes. I would just like to
16ask you a little bit about the timing of these
17investigations in relation to when the facts
18underlying them start.
19 The two newspaper accounts in
20question are from March and April 2007. From best
21that I can gather, the matters are concluded in
22November 2008, and then ultimately signed off by
23you once the rest of Centipede is finished in 2009;
24correct?
25 A. Yes.
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1 Q. Can you comment on the length
2of time it took to get to the point of concluding
3these? You know, are there reasons why it would
4take that long insofar as you are aware with your
5experience at the NIS?
6 A. In general terms -- and I
7can't be specific, because I wasn't there when they
8started, but I assume some of these files were
9prioritized, and those that had more information or
10likely had people to speak to were tackled first.
11 It is not uncommon sometimes that
12some of these things will have to be -- sit for a
13little while, while investigators clear up other
14backlogs.
15 Q. And to your knowledge --
16well, you took over in August of 2008. How well
17equipped, in terms of resources, was the NIS at
18that time to deal with all of the investigations it
19had ongoing when you took over?
20 A. Well, if this is an
21opportunity to get more people, I think everybody
22would like to have more people. I mean, I think we
23can adequately deal with the complaints as they
24come in, if you prioritize the complaints properly
25and you tackle them in prioritization.
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1 Q. The prioritization, whatever
2it may have been with these two reports, means that
3from the time of the printing of the articles to
4the time of concluding, it is well over a year. It
5is almost a year and a half.
6 Does that seem like a long time
7for allegations where the issues involved, namely,
8potential abuse of a transferred detainee, are
9fairly serious, quite serious?
10 A. I can't really talk to the
11time lines. I know some of these other allegations
12were more serious in nature and were tackled first.
13 Q. So whatever resources the NIS
14had available during this period of time, it would
15have rendered these to be prioritized such that
16they don't get investigated at least until the time
17we do see here, which is resolved in November 2008?
18 A. It appears so, yes.
19 Q. In light of the fact that
20abuse of detainees was a significant issue -- let
21me ask you: Was it a significant issue when you
22took over the NIS, the allegations of abuse of
23detainees?
24 A. The treatment of detainees
25was certainly a significant issue for the Canadian
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1Forces when I took over, yes.
2 Q. And in light of the nature of
3the complaint filed in June 2008, which says that
4the orders should be looked at, the orders to
5transfer, would it seem that a conclusion of
6investigations so that other personnel in the
7military know what the underlying facts are in
8relation to detainee abuse allegations, ideally it
9should happen in a very timely fashion?
10 A. And, again, all I can go back
11to say, a number of allegations, some of them
12alleging that Canadian Forces personnel abused
13detainees -- and this is the focus that that task
14force took, I can only surmise -- and they tackled
15those investigations that had allegations of
16Canadian Forces personnel abusing detainees first.
17 Q. In your experience as an
18investigator, how does the passage of time affect
19the ability to do an effective investigation?
20 A. It makes it more difficult.
21 Q. Can you maybe explain a
22little bit about what challenges you face when time
23passes? If you are not able to, because of
24resources, prioritize your matters ideally, such we
25don't live in an ideal world, what effect does it
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1have on your investigations when you have to delay
2those investigations?
3 A. On a general term, obviously
4it affects witnesses' recollection of the events.
5It affects the time -- if I look at both of these
6articles, there is not a whole lot of mention of
7many witnesses that could -- any witnesses that
8could be interviewed, but certainly people's
9memories, it affects that.
10 Q. I won't go to it, but I think
11the Globe and Mail article -- and, in fact, your
12occurrence refers to one of the named detainees,
13Mahmad Gul. Was there an NIS detachment -- there
14was an NIS detachment in Kandahar; is that correct?
15 A. There is an NIS detachment in
16Kandahar. They have been there for a number of
17years, yes.
18 Q. Okay. So in an ideal world,
19if you had the resources, might you send somebody
20from there to interview the people named in the
21article to follow up on the allegations, if you
22could?
23 A. Yes.
24 Q. And that would be more
25difficult if time passes before you can get to that
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1investigation; is that fair to say?
2 A. Yes.
3 Q. Because who knows, if they're
4still around and can remember what happened, if
5there are witnesses?
6 A. Hmm-hmm.
7 Q. And so on. There is one last
8general occurrence which I would like to canvass
9with you just a little bit.
10 A. Sure.
11 Q. And that one can be found at
12tab 8 of that same, second volume of NIS witness
13materials.
14 A. Yes.
15 Q. This is General Occurrence
162008-23231.
17 A. Correct.
18 Q. First, can you confirm that,
19too, was part of Operation Centipede?
20 A. Yes, it was.
21 Q. And you've got a letter
22signing off on that at page 5 of 46, I believe.
23 A. Yes. This is on page 6, yes,
24correct.
25 Q. Do you recall what the
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1general nature of the complaint was in this
2investigation? If it assists, you might look at
3page 19 of 45. I guess page 18 or 19.
4 A. Yes, I do recall.
5 Q. Okay. Without disclosing
6anything that cannot be disclosed, can you just
7outline the general nature of the underlying
8allegation in this one?
9 A. Yeah. The general nature is,
10during a training course at our academy, an
11instructor would have made mention of having
12seen -- having seen abuse of a detainee by Afghan
13nationals.
14 Q. And are you able to
15ascertain, from what we have here, when that would
16have been? It indicates it was when the RCRs were
17present. Do you know when that would have been?
18 A. Not offhand I don't, no.
19 Q. There is a mention of a
20Warrant Officer London at page 20 of 46 and other
21places, but I want to go to there.
22 A. Yes.
23 Q. In the middle of page 20 of
2446, there appears to be a short outline and some
25more detail. There appears to be a Sergeant Dinkel
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1who was present during a lecture on prisoner of
2war/detainees, where the lecturer, Warrant Officer
3London, related a story in which a Corporal MP,
4identity unknown, dealt with a detainee.
5Apparently, this MP turned over the detainee to the
6ANA.
7 Would you understand that to be
8the Afghan National Army?
9 A. That would be my
10understanding.
11 Q. Okay. And this involved some
12kind of allegation of subsequent abuse on that
13person. Is that what we understand this complaint
14to be about?
15 A. Yes.
16 Q. Okay. The conclusion of
17this, in your letter at page 5 of 46, it indicates
18that there is insufficient information to determine
19the identity of any firsthand witnesses to this
20event, and it does appear that Warrant Officer
21London was not a firsthand witness to that; is that
22what you would understand, or --
23 A. My understanding is he was
24telling war stories on the course; that's correct.
25 Q. Your letter also indicates
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1that from the information that is available, it was
2determined that the alleged detainee abuse in this
3case involved an individual who was never in CF
4custody.
5 Now, I am wondering how to
6reconcile that with Sergeant Dinkel's statement
7about page 20 of 46, where he says a Corporal MP
8dealt with a detainee and apparently this MP turned
9the detainee over to the ANA.
10 In other words it looks like, at
11page 20, the person was in Canadian Forces custody,
12albeit maybe for a short time?
13 A. I think it is clarified when
14we spoke to Warrant Officer London and he said, you
15know, I heard it from a Corporal RCR who wasn't
16even there, and he posed the question to him, Do
17you know if this individual was ever in CF custody?
18He answered "no".
19 Q. Okay. So it may not be there
20is evidence either way, but since it is such a
21remote kind of story, third-, fourth-hand
22information, you can't determine one way or
23another, is that --
24 A. Correct.
25 Q. Okay, fair enough. If,
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1however, you had more reliable information, a
2first-hand witness, would the standing by of a --
3or would the handing over of this person, who is
4subsequently abused, be a matter that would raise
5NIS interest in an investigation, if you had
6reliable evidence?
7 A. If we had reliable evidence
8that they turned him over and witnessed abuse, yes.
9Yes, certainly.
10 Q. Okay. There seems to be an
11indication -- there is an indication in your letter
12saying that the incident had reportedly been
13forwarded to the Canadian Forces chain of command
14at the time of the occurrence. That's, sorry, at
15page 5 of 46, again.
16 A. Yes, I see that in the
17writing.
18 Q. Do you know if the NIS ever
19confirmed whether such an incident was disclosed to
20the chain of command?
21 A. No, I don't.
22 Q. Information in the possession
23of the chain of command, if you were to ask for it
24to follow up on this investigation, is that
25something that the NIS would typically do is ask
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1the chain of command for incident reports or things
2of that nature relating to this?
3 A. Yes, we could, if we had a
4time frame and knew exactly who we were talking
5about.
6 Q. Chain of command probably has
7a lot of documents to go asking them for a
8particular incident where you don't know the date
9or anything?
10 A. I would assume.
11 Q. If the chain of command -- if
12you request documents from the chain of command,
13are they required to give them to you or is it
14something that they decide? What are the rules
15insofar as cooperation with the NIS go?
16 A. It depends on the
17circumstances, but, I mean, if we're doing a
18legitimate NIS investigation and we request
19documents and they're able to give them to us, or,
20through a search warrant, they will be seized, if
21that is a requirement in law.
22 Q. So the NIS does have the
23power to seek and obtain, if they have the
24appropriate underpinnings, a search warrant?
25 A. Yes.
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1 Q. And that could be done with
2respect to the NIS's investigations of the chain of
3command itself?
4 A. Yes. It could be done, yes.
5 Q. To your knowledge, has any
6attempt been made by the NIS to obtain documents
7from the chain of command in relation to the
8allegations that we are investigating; namely,
9transfer orders between May 3rd of 2007 and June
1012th, 2008?
11 A. I don't know.
12 Q. While you have been in charge
13of the NIS, has any such request been made to the
14chain of command for their documentation of the
15transfer decisions during those periods of time?
16 A. Not by me, no.
17 Q. I take it no warrants have,
18either, been sought by you?
19 A. No.
20 Q. Brief indulgence.
21 MR. McGARVEY: Thank you, Colonel.
22Those are my questions. I am sure some of the
23other parties will have questions of you.
24 THE WITNESS: Thank you.
25 THE CHAIR: Ms. Pastine or Mr.
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1Elgazaar?
2 MS. PASTINE: I will be conducting
3the examination. Thank you.
4CROSS-EXAMINATION BY MS. PASTINE:
5 Q. Lieutenant-Colonel, I am Ms.
6Grace Pastine. I represent the B.C. Civil
7Liberties Association and Amnesty International.
8 I have a few questions for you
9about the suspension of transfers that occurred --
10 THE CHAIR: Can you just hold one
11sec? Has the witness got the document?
12 MR. BERLINQUETTE: Does the
13witness have the document?
14 MS. PASTINE: No, he doesn't.
15Would you like me to put that to him now?
16 MR. BERLINQUETTE: Well, no. We
17will.
18 THE CHAIR: We will let it go
19until you are ready to do it.
20 MS. PASTINE: Thank you.
21 MR. BERLINQUETTE: Sorry.
22 BY MS. PASTINE:
23 Q. So I have a few questions for
24you about the suspension of transfers, which you
25have testified here today occurred between November
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15th, 2007 and February 26th, 2008.
2 When you assumed your position as
3Commander of NIS, were you aware that there had
4been a suspension of transfers?
5 A. Honestly, that information, I
6gathered that from the paperwork today. I didn't
7know the dates and I didn't know the length of
8suspensions prior to reading those documents today.
9 Q. So when you assumed your
10position as Commander of the NIS, you didn't
11realize that there had been a suspension of
12transfers; is that correct?
13 A. I may have heard it, but I
14wasn't -- I wasn't aware of the facts, no.
15 Q. And you said you may have
16heard of it. Do you have any recollection, any
17specific recollection, of what you may have heard
18or from whom?
19 A. No.
20 Q. At any point, did you learn
21why transfers were suspended?
22 A. No.
23 Q. And did you ever discuss the
24suspension of transfers, either formally or
25casually, with other members of the Canadian
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1Forces?
2 A. No.
3 Q. Now, you assumed
4responsibility as Commander of NIS after Commander
5Garrick retired. When you assumed your position,
6did Commander Garrick brief you on any of the
7ongoing investigations?
8 A. He didn't give -- he gave me
9specific briefs on some investigations, but not all
10of them.
11 Q. And were those briefings that
12were prepared specifically for you to help you in
13assuming your new responsibilities?
14 A. They were a handover brief,
15correct.
16 Q. And you had those available
17to you when you began your new position?
18 A. The handover brief?
19 Q. Yes.
20 A. Yes.
21 Q. Now, today you have testified
22about multiple investigations within Operation
23Centipede, and I am just going to ask you a few
24questions about the communications you had with
25other members of the Canadian Forces about those
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1investigations, about any of those investigations
2or particular ones of those investigations.
3 Generally speaking, did you
4communicate with your commanding officer, the CF
5Provost Marshal, about any of these investigations?
6 A. I don't recall.
7 Q. Did you communicate with the
8CEFCOM Provost Marshal about any of these
9investigations?
10 A. I don't believe so.
11 Q. And did you communicate with
12the Task Force Provost Marshal about any of these
13investigations?
14 A. No.
16the Vice Chief of the Defence Staff about any of
17these investigations?
18 A. No, I did not.
20the Chief of the Defence Staff about any of these
21investigations?
22 A. No.
23 Q. Now, there has been some
24evidence before this Commission that Operation
25Camel Spider -- that is the operation that occurred
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1before Operation Centipede, as I understand it --
2encountered significant resource problems.
3 Were you aware that Operation
4Camel Spider encountered resource problems?
5 A. No, I'm not.
6 Q. Now, I would like to provide
7you with a report that was made by this Commission
8regarding the Attaran complaint.
9 It seems I gave one extra copy to
10the stenographer. If it might be possible to
11provide that to the witness, I would be obliged.
12 THE WITNESS: Oh, thank you.
13 THE CHAIR: I think there was to
14be a question regarding the purpose.
15 MS. PASTINE: Perhaps I will just
16ask the witness if he is, first, familiar at all
17with this report, and then direct him to the
18paragraphs that I intend to question him about.
19Would that be appropriate?
20 THE CHAIR: That would be fine.
21 BY MS. PASTINE:
22 Q. So this is the Attaran report
23that was prepared by the Military Police Complaints
24Commission regarding the allegations of abuse of
25three detainees.
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1 Are you familiar with this report?
2 A. Yes, I have seen this report
3before.
4 Q. Have you read it before?
5 A. Yes.
6 Q. And when did you read it?
7 A. I would say I read it right
8after it came out back in April; April/May time
9frame, very close to when it was distributed.
10 Q. Now, I would like to take you
11to some paragraphs towards the end of this report.
12I will direct your attention to paragraph 201.
13That's at page 64.
14 A. Yes.
15 Q. Now --
16 THE CHAIR: Seeing how we are
17referring to this report, has this been entered?
18 MS. PASTINE: To the best of my
19knowledge, this has not been entered as an exhibit.
20 MR. McGARVEY: I do not believe it
21has been, and, properly speaking, I think we are
22now at the point where we have to determine whether
23it will be.
24 Under the rules of the proceeding,
25S13 provides for the requirement that a party or
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1intervenor who intends to file a document as
2evidence or refer to it during a hearing shall
3provide counsel for the complainants and Commission
4with a copy of the document at the earliest
5opportunity, but no later than three business days
6before the party or intervenor intends to file or
7refer to the document.
8 Now, the Commission does have the
9power under Rule 3, on your own initiative, to
10suspend in whole or in part the time requirements
11if it seems appropriate.
12 So I think it should probably be
13determined at this stage whether the document can
14be used in the manner that is intended, in light of
15the rules of this proceeding.
16 THE CHAIR: Ms. Pastine.
17 MS. PASTINE: We provided copies
18of this on Saturday to all of the parties, but I
19certainly realize that that was not three business
20days in advance.
21 In light of the fact that it is a
22publicly available report of this Commission that
23pertains to the matters at issue, we would ask that
24it would be possible for that rule to be flexible.
25 THE CHAIR: Ms. Richards.
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1 MS. RICHARDS: This report does
2not pertain to matters at issue before you in this
3complaint. This pertains to matters that were
4before this Commission in a different complaint, in
5dates that preceded this.
6 So our concern is, if it is the
7intention of the complainant to enter this report
8for the truth of the conclusions in there, it is
9improper and it is impermissible. You don't have
10the underlying factual information that is in here.
11 So that is why I am sort of
12hesitating and waiting to see what questions the
13complainant intends to put to the witness on this
14report. It may mean we don't have an objection if
15they're simply using it to ask some questions.
16 If they're intending to put it in
17for the truth of the contents of the report, then I
18think there is a problem with it.
19 THE CHAIR: Mr. Wallace?
20 MR. WALLACE: Yes. I would like
21to see the actual purpose for which the report is
22going to be used, but I could also say, as far as
23the issue of timing is concerned, I certainly
24wouldn't be standing on the timing issue.
25 I think that I could well be in
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1the same position down the road, and I am not going
2to object on the basis of timing.
3 THE CHAIR: Just for purposes of
4the Panel, the issue of the timing I don't think is
5really an issue for us.
6 MS. RICHARDS: No.
7 THE CHAIR: The Rules are somewhat
8flexible to begin with.
9 MS. RICHARDS: We take no issue
10with the timing.
11 THE CHAIR: That's fine. So that
12being said, then the issue becomes the purpose of
13it, and obviously, at the end of the day, it is a
14matter of the weight, if anything, that we would
15place on it, even though it is relative to whatever
16the issue may be.
17 MS. RICHARDS: I think the proper
18thing to do is to allow the questioning, to
19continue with the questioning and if -- at the end
20of it, she can ask to have it marked, if we have an
21objection we will let you know, and hopefully we
22won't and things will go along smoothly.
23 THE CHAIR: Okay. It is all
24yours.
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1 BY MS. PASTINE:
2 Q. So I will direct your
3attention to paragraph 201 at page 64, at the top
4of the page. I will read from that paragraph.
5It says:
6 "The CFNIS Case Manager's
7 Report included a bold
8 initiative by seconded RCMP
9 Inspector Gfellner in which
10 he provided a detailed
11 critique of MP resource
12 deficiencies and other
13 factors which impeded the
14 CFNIS investigation of this
15 complaint..."
16 Now, what I would like -- the case
17manager's report made note of a number of resource
18deficiencies, and what I would like to do is ask
19you if you encountered any similar resource
20deficiencies when you were Commander of the NIS.
21 So I will draw your attention now
22to paragraph 202, the first sentence, and there it
23states:
24 "The Case Manager's Report
25 observed that the CFNIS
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1 investigation was 'plagued'
2 throughout by delays related
3 to the securing of
4 transcription services..."
5 I will stop there. Did you find
6that to be a problem during your tenure with the
7CFNIS?
8 A. No.
9 Q. Now I will draw your
10attention to paragraph 203. It reads:
11 "Despite the importance of
12 this investigation, the CFNIS
13 investigation team seems also
14 to have lacked dedicated
15 clerical support."
16 During your tenure as Commander of
17the CFNIS, have you encountered problems with a
18lack of dedicated clerical support?
19 A. No.
20 Q. It also continues at
21paragraph 204:
22 "The CFNIS investigation was
23 faced with significant
24 challenges due to inadequate
25 information technology
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1 support."
2 Has that been a challenge for you
3during your tenure at the CFNIS?
4 A. No.
5 Q. Now, I will draw your
6attention to paragraph 206 on page 65. It states:
7 "The CFNIS case manager also
8 described a variety of
9 problems related to the
10 collection of documentary
11 evidence relevant to the
12 investigation, including:
13 "a. 'Considerable
14 resistance' from the chain of
15 command of the CF unit
16 involved in the apprehension
17 of the three detainees to
18 providing relevant documents.
19 Requested material was only
20 provided when it became clear
21 that the CFNIS was prepared
22 to seek a judicial order
23 compelling production under
24 the Criminal Code."
25 During your tenure at the CFNIS,
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1have you encountered resistance from the chain of
2command of the Canadian Forces?
3 A. No.
4 Q. In terms of resources, this
5report was related to a period in -- or 2006 and
6was released in 2009, but the period under
7investigation was largely 2006.
8 Has there been an increase in the
9resources for the CFNIS since that time?
10 A. Since 2006? I can't be
11certain. There has been onesies and twosies, like
12one extra investigator here, one there, nothing
13significant, keeping in mind this was a major case
14that they undertook in April of -- I think it was
15April 2006.
16 Q. So perhaps on cases where
17there is less investigation required or conducted,
18there might be less opportunity to encounter these
19types of problems with resources; is that fair to
20say?
21 A. Yes.
22 Q. I will draw your attention to
23paragraph 207 on page 66. It reads:
24 "The general shortage of
25 available and reliable
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1 interpreters was also noted
2 in the Case Manager's Report
3 to be a considerable
4 challenge to the
5 investigation."
6 Has that ever been a challenge for
7you in your investigations?
8 A. No.
9 Q. Have you ever required the
10services of an interpreter in your investigations?
11 A. Yes.
12 Q. And during the period under
13review by this Commission?
14 A. Sorry, say again.
15 Q. Have you required the
16services of an interpreter during the period that
17this Commission is examining, that is --
18 A. I can speak to the time that
19I took over the NIS in August 2008 to present.
20There has been need for interpretation,
21interpreters and translation of documents, yes, and
22we haven't had a problem.
23 Q. Now, finally, I am going to
24take you to the paragraph 212 of this report. It
25states:
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1 "The general picture of the
2 military police conveyed by
3 the CFNIS Case Manager's
4 Report is one of continued
5 marginalization within the
6 culture of the Canadian
7 Forces, both in terms of the
8 perceived value of their
9 work, and their positioning
10 in the command structure."
11 I will stop there for the moment.
12Have you experienced similar marginalization as was
13found in the case manager's report?
14 A. No.
15 Q. And that concludes what I was
16going to ask the witness about this document.
17 MS. RICHARDS: As hoped, no
18objections. That's fine.
19 THE CHAIR: Then we should file
20this as an exhibit, Madame Registrar.
21 MR. McGARVEY: If I could just
22note, as well, in volume 2 of the main witness
23books, at tab 21 we have the executive summary and
24case manager's report in question. B-94 is the
25document number.
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1 So insofar as anyone is concerned
2about the paragraphs referred to, the underlying
3report is also already in evidence. So I think the
4concession is obviously quite appropriate and the
5underlying factual report is with us, anyway.
6 THE REGISTRAR: Exhibit P-56 for
7the Attaran report.
8 EXHIBIT NO. P-56: MPCC Final
9 Report - Public Interest
10 Investigation.
11 THE CHAIR: You can please
12continue.
14 Now, I would like to take you to
15Exhibit P-1 now. Ms. Cléroux was kind enough to
16make copies of these for all of the parties.
17 THE CHAIR: Just a minute. We
18have to rearrange our books here.
19 MS. PASTINE: I would like to
20provide the witness with a copy of Exhibit P-1, if
21possible.
22 THE CHAIR: Absolutely, if he
23doesn't have one. We have everything over here.
24 BY MS. PASTINE:
25 Q. Lieutenant-Colonel, this is
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1the first complaint that was filed by Amnesty
2International and the BC Civil Liberties
3Association regarding transfers to substantial risk
4of torture.
5 Have you seen this complaint
6before? Just for clarification, this is the
7complaint that precedes the second complaint which
8made the allegation that there was a failure to
9investigate.
10 A. I believe that I have seen it
11before.
12 Q. Do you know, was this
13complaint provided to you when you assumed your
14responsibilities as Commander of the NIS?
15 A. I can't be certain of that.
16 Q. Do you have any recollection
17of when you may have seen this before?
18 A. Prior to taking over the NIS
19I was with the Deputy Provost Marshal's
20professional standards, so most documents that come
21from the MPCC get forwarded over to the
22professional standards organization. So I believe
23that is when I saw this document.
24 Q. So you will note that this
25complaint letter is dated February 2007. That's
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1over a year and a half prior to when you assumed
2your position as Commander of NIS.
3 I would like to direct your
4attention to page 3 of the document. Now, the
5complaint quotes a number of widely available human
6rights reports by different bodies. I am going to
7draw your attention to the first one, and that is
8at the top of the page, page 3. It reads:
9 "The 2004-2005 annual report
10 of the AIHRC..."
11 That's the Afghan Independent
12Human Rights Commission:
13 "... (released in 2006) warns
14 that the ANP engages in
15 illegal detention and
16 'routine' torture. To quote
17 AIHRC:
18 "'Torture continues to take
19 place as a routine part of
20 ANP procedures and appears to
21 be closely linked to illegal
22 detention centers and illegal
23 detention, particularly at
24 the investigation stage in
25 order to extort confessions
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1 from detainees. Torture was
2 found to be especially
3 prevalent in Paktia and
4 Kandahar provinces, linked to
5 the high numbers of illegal
6 detainees...'"
8Commander of NIS, were you familiar with this
9report from the AIHRC?
10 A. No.
11 Q. I will draw your attention to
12the next human rights report that is quoted in this
13letter. It is at the paragraph directly following
14the one I read. It states:
15 "The United Nations Office of
16 the High Commissioner for
17 Human Rights has also reached
18 similar conclusions about
19 torture. In March 2006, the
20 report of the UN High
21 Commissioner noted 'serious
22 concerns' over reports of
23 torture..."
24 Were you familiar, when you
25assumed your responsibilities as Commander of the
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1NIS, that the United Nations Office of the High
2Commissioner For Human Rights report that is
3referred to here?
4 A. No, I was not.
5 Q. And I will also then draw
6your attention to the middle of the paragraph, that
7paragraph begins:
8 "We cannot be certain which
9 techniques of torture the ANP
10 and NDS use."
11 Do you see that paragraph?
12 A. Yes, I do.
13 Q. It continues:
14 "However, the US State
15 Department, which in a March
16 2006 report concurred in
17 observations that Afghan
18 local authorities 'routinely'
19 torture detainees, cites
20 these methods..."
21 Then it quotes from the US State
22Department report:
23 "Afghanistan's human rights
24 record remained poor....
25 There continue to be
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1 instances in which security
2 and factual forces committed
3 extrajudicial killings and
4 torture ... Torture and
5 abuse consisted of pulling
6 out fingernails and toenails,
7 burning with hot oil, sexual
8 humiliation and sodomy ..."
9 Were you aware, when you assumed
10your position as Commander of NIS, of this report
11of the US State Department?
12 A. No, I was not.
13 Q. Now I am going to draw your
14attention to another document, the Federal Court
15Decision by Madam Justice Mactavish that you were
16reviewing earlier, and that is at volume 5, tab 42.
17It is Exhibit P-9.
18 A. Sorry, which tab?
19 Q. Tab 42, that is in volume 5
20of the big white binder.
21 A. Thank you.
22 Q. I would like to draw your
23attention to paragraph 72, and that paragraph reads
24at paragraph 72:
25 "The applicants have led
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1 substantial evidence with
2 respect to the alleged
3 inadequacies in the
4 safeguards that have been put
5 into place to this point to
6 protect detainees transferred
7 to Afghan authorities by the
8 Canadian Forces."
9 Now, Federal Court Justice Madam
10Justice Mactavish then goes on to note a number of
11deficiencies, and I am going to take you to those
12in this judgment.
13 At paragraph 74, the heading just
14above that paragraph is, "Deficiencies in Record
15Keeping". Paragraph 74 reads:
16 "Both the first and second
17 Arrangements impose an
18 obligation on Afghanistan to
19 maintain accurate written
20 records accounting for all
21 detainees that pass through
22 their custody. This does not
23 appear to be happening."
25Commander of the NIS, were you aware that there was
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1potentially an issue in the deficiency of record
2keeping by Afghan authorities in regards to
3detainees?
4 A. No, I wasn't.
5 Q. Now I will draw your
6attention to paragraph 77. The heading is "Missing
7Detainees". Paragraph 77 reads:
8 "Due in part to the problems
9 of record keeping identified
10 above, Canadian personnel
11 appear to have lost track of
12 a number of individuals who
13 have been handed over to
14 Afghan authorities by the
15 Canadian Forces.
16 "While some of these
17 individuals have subsequently
18 been located, according to
19 the testimony of Nicholas
20 Gosselin, the DFAIT Human
21 Rights Officer in Kandahar
22 responsible for detainee
23 monitoring, at this point
24 there are at least four
25 detainees who were taken into
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1 Canadian custody after May 3,
2 2007 and then subsequently
3 transferred to the Afghan
4 authorities, whose current
5 whereabouts are unknown.
6 "As a consequence, it has not
7 been possible to determine
8 whether these individuals
9 have been subject to abuse
10 while in Afghan detention."
12commander of the NIS, were you aware that there
13were potential problems with missing detainees in
14Afghan custody?
15 A. No, I wasn't.
16 Q. Now, I would like to direct
17your attention to paragraph 84. The heading there
18is "Denial of Access to Afghan Detention
19Facilities". That paragraph reads:
20 "The documentation produced
21 by the respondents relating
22 to the period after the
23 negotiation of the second
24 Arrangement on May 3, 2007
25 confirms that on one
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1 occasion, Canadian personnel
2 attempting to visit detainees
3 following their transfer to
4 Afghan custody were denied
5 access to detainees being
6 held at Sarpoza prison,
7 allegedly because of security
8 concerns relating to the
9 large number of visitors in
10 the facility for a family
11 visiting day."
12 Were you aware, during your tenure
13as Commander of the NIS, that the Afghan officials
14were denying access on at least one occasion to
15DFAIT personnel?
16 A. No, I wasn't.
17 Q. Now I will direct your
18attention to paragraph 85, and the heading there is
19"Complaints of Mistreatment Prior to November 5,
202007". It reads:
21 "Eight complaints of prisoner
22 abuse were received by
23 Canadian personnel conducting
24 site visits in Afghan
25 detention facilities between
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1 May 3, 2007 and November 5,
2 2007. These complaints
3 included allegations that
4 detainees were kicked, beaten
5 with electrical cables, given
6 electric shocks, cut, burned,
7 shackled, and made to stand
8 for days at a time with their
9 arms raised over their
10 heads."
11 It continues at paragraph 86:
12 "While it is possible that
13 these complaints were
14 fabricated, it is noteworthy
15 that the methods of torture
16 described by detainees are
17 consistent with the type of
18 torture practices that are
19 employed in Afghan prisons,
20 as recorded in independent
21 country condition reports,
22 including those emanating
23 from DFAIT."
24 Now, you have already testified
25that you were not aware of any -- you hadn't been
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1provided with any of those site reports; is that
2correct?
3 A. That is correct, yes.
4 Q. I will turn your attention
5now to paragraph 88. The heading is "The Need to
6Rely on Afghan Investigations of Allegations of
7Mistreatment". That paragraph reads:
8 "The second Arrangement
9 specifically provides that
10 allegations of mistreatment
11 at the hands of Afghan
12 authorities are to be
13 investigated by the
14 Government of Afghanistan. It
15 further provides that those
16 alleged to be responsible for
17 the abuse of detainees are to
18 be prosecuted in accordance
19 with Afghan law and
20 internationally applicable
21 legal standards."
22 At paragraph 89, it says:
23 "Canada has no independent
24 capacity to investigate
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1 of detainees in Afghan
2 custody, as to do so would
3 encroach on Afghan
4 sovereignty."
5 I am going to jump ahead to
6paragraph 90:
7 "As a result, Canada is
8 entirely reliant on
9 investigations of detainee
10 abuse carried out by Afghan
11 officials."
12 At paragraph 93, it states:
13 "All of these considerations
14 raise concerns as to the
15 reliability of the findings
16 of the investigation that all
17 of the allegations were
18 unfounded."
19 That paragraph is referring to a
20couple of paragraphs above where the Afghan
21authorities reported that all of the allegations of
22abuse were unfounded.
23 Madam Justice Mactavish draws
24attention to the fact that it may not be possible
25to rely on these assertions by Afghan authorities.
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1 When you assumed responsibility as
2Commander of the NIS, did you, yourself, have any
3concerns about the degree to which you could rely
4on Afghan assurances about the treatment of
5detainees?
6 A. I was not aware of these
7reports to start with, so I didn't -- I didn't know
8the outcome of their investigation. So --
9 Q. Thank you. Now, finally, I
10would just like to draw your attention to paragraph
11108, and the heading there is, "The Expert Evidence
12With Respect to Post-Transfer Monitoring as a Means
13of Preventing Torture".
14 Actually, I will jump to paragraph
15109. It states, "Dr. Iacopino", who is an expert
16adduced by Amnesty and the BCCLA:
17 "Dr. Iacopino's evidence
18 raises serious questions as
19 to the usefulness of
20 post-transfer monitoring as a
21 means of preventing torture."
22 "Dr. Iacopino's view that
23 post-transfer monitoring
24 mechanisms are not effective
25 to mitigate the risk of
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1 torture is shared by numerous
2 international organizations,
3 including the United Nations
4 Special Rapporteur on Torture
5 and the United Nations High
6 Commissioner for Human
7 Rights."
8 Was the issue of the reliability
9of post-transfer monitoring something that had
10occurred to you or was of concern to you when you
11assumed your position as Commander of the NIS?
12 A. I was not aware that these
13documents existed and they actually examined the
14post-monitoring of transfers. I wasn't aware, so --
15 Q. So, as you can see, I put to
16you a number of potential inadequacies in
17monitoring and in follow-up that are set out in
18this judgment.
19 Do you think any of this
20information would have been relevant to any of your
21investigations?
22 A. This information doesn't
23provide any concrete evidence that the Commander --
24who was the issue at play here, is that we
25investigate the Commander -- whether he knew that
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1when he transferred these detainees, that they
2could be subject to torture.
3 So I have not been presented with
4any evidence or any information to raise my
5suspicion that he knew, prior to transfer, that
6they could have been subject to torture, no.
7 Q. Wouldn't the fact that these
8reports exist suggest to you that it might have
9been possible for the Commander or other commanders
10to have known about them?
11 A. I don't know what they would
12have been aware of.
13 Q. Is your position, then, that
14none of this information was relevant to your
15investigations?
16 A. It is my position that there
17is nothing -- there is no concrete evidence in here
18that says any of the Canadian detainees were abused
19or tortured after transfer and that the Commander
20would have known that prior to transferring them.
21 Q. Is it your evidence that none
22of this was relevant to the investigations?
23 A. Into the investigations that
24we conducted?
25 Q. Correct.
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1 A. Into the eight investigations
2in Centipede, this -- I don't believe this is
3relevant.
4 Q. Now I would like to draw your
5attention to one of the DFAIT monitoring reports.
6You have stated that you haven't seen any of these
7reports?
9 Q. I would like to take you to
10volume 2 of 5 of these white volumes. It is tab
1149. If you go in about five pages from the very
12back, so if you start at the back, and then go in
13five pages, there is a page that says 3 of 3.
14 A. There is a number of 3 of 3s.
15279 at the pot, is that it?
16 Q. No, it is forward of that.
17It has 285 at the bottom, but there are a number of
18pages that have "285" at the bottom. So it is 285,
193 of 3.
20 A. Okay, I have it.
21 Q. And do you see the paragraph
22that begins, "When asked about his interrogation"?
23 A. "When asked about his
24interrogation", yes.
25 Q. Yes, good. Just to make sure
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1we are all in the same place here.
2 Now, there is evidence that this
3is the site visit that ultimately led to the
4suspension of transfers.
5 A. Okay.
6 Q. Now, I am going to read that
7passage to you.
8 "When asked about his
9 interrogation, the detainee
10 came forward with an
11 allegation of abuse. He
12 indicated that he had been
13 interrogated on [blank]
14 occasions by a group of
15 [blank] individuals. He
16 could not positively identify
17 the individuals [blank]. He
18 indicated that he cannot
19 recall the [blank]
20 interrogation and any details
21 as he was allegedly knocked
22 unconscious early on. He
23 alleged that during the
24 [blank] interrogation,
25 [blank] individuals held him
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1 to the ground [blank] while
2 the other [blank] beating him
3 with electrical wires and
4 rubber hose. He indicated a
5 spot on the ground in the
6 room we were interviewing in
7 as a place where he was held
8 down. He then pointed to a
9 chair and stated that the
10 implements he had been struck
11 with were underneath it.
12 Under the chair we found a
13 large piece of braided
14 electrical wire, as well as a
15 rubber hose. He then showed
16 us a bruise, approximately
17 four inches long, on his back
18 that could possibly be the
19 result of a blow. While we
20 did not ask, after the
21 interview was completed and
22 before we left [blank] told
23 us that [blank].
24 "The detainee specifically
25 asked that these allegations
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1 be kept confidential, not
2 shared with NDS officials."
3 (As Read)
4 So as you see here, this was a
5site report where the actual alleged instruments of
6torture or abuse were found by the DFAIT officials
7that were monitoring the prisoner.
8 Would you agree that this
9incident, at least, raises the possibility that
10international law was violated, or the law of armed
11conflict by handing this detainee over to Afghan
12officials?
13 A. I am assuming this detainee
14was a Canadian Forces detainee first before he was
15transferred? I really -- I don't know that from
16this paragraph.
17 Q. Yes. There is information
18that, according to the DFAIT officials, he was a
19Canadian Forces detainee.
20 A. That's in this document?
21 Q. Yes. And, I mean, I suppose,
22though, the question is: Assuming that this was a
23CF detainee, does it raise -- at least raise -- the
24possibility that the law of armed conflict or
25international law was violated?
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1 A. If in fact the Commander knew
2that this was going to happen after he transferred
3him?
4 Q. If he knew or if he had
5reason to know.
6 A. I just want to read it again,
7just to --
8 Q. Certainly.
9 A. The detainee certainly
10alleges that he was mistreated. Tell me the
11question again, please.
12 Q. Certainly. Yes. Given that
13the detainee asserts that he was mistreated, given
14that the alleged implements of torture or abuse
15were found in his cell, does this incident raise
16the possibility that the law of armed conflict or
17international law was violated?
18 A. It raises a possibility.
19 Q. Now, there was some evidence
20before this Commission that the DFAIT monitoring
21reports, such as this report, were sent to CEFCOM.
22 Do you have any idea why these
23reports weren't shared with you?
24 A. No idea.
25 Q. Now I have a more general
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1question for you, and that is just I note that
2clearly the matters that you were investigating
3raise issues of international law, of the law of
4armed conflict, and I was hoping that you could
5tell the Commission a little bit about what your
6training was in international law and the law of
7armed conflict.
8 A. Well, the laws of armed
9conflict we have training at our QL3 course, which
10is our basic course, on our basic officer's course,
11as well, and on our QL5 course; any courses that
12touch upon field operations and dealing with
13detainees.
14 Q. And were you specifically
15given any training in other aspects of
16international law, such as in the Geneva
17Conventions?
18 A. Yes. That is covered off,
19the Geneva Conventions. How you treat detainees,
20wounded persons or civilians, and civilians and
21children is covered off in those lectures. I have
22also personally received lectures prior to going
23over to Kosovo in 1999.
24 Q. Hmm-hmm. Now, I am going to
25ask you just a few questions about what you
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1understood the law to be, and I want to make it
2clear that I am not asking you what the law is. No
3doubt that is something lawyers can argue over, but
4as an investigator, what you understood the law to
5be.
6 Now, under questioning from
7Commission counsel, you stated that Operation
8Centipede focussed on whether Canadian Forces
9perpetuated torture or abuse themselves, whether
10they committed torture or abuse themselves. Do you
11recall saying that?
12 A. Yes. That would be the focus
13of those investigations, wherein allegations that
14Canadian Forces personnel would have abused
15detainees.
16 Q. So when we're talking about
17the legal standards, you understand that it is
18illegal for an individual -- for a member of the
19Canadian Forces to torture?
20 A. Yes.
21 Q. And it would be illegal for a
22member of the Canadian Forces to order torture, to
23order another member of the Canadian Forces to
24torture?
25 A. Yes.
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1 Q. Now, you have made a number
2of points about this today, but I just want to make
3sure that I understand precisely what you mean.
4 Now, it is also illegal for an
5individual to transfer an individual to torture.
6Is that your understanding?
7 A. Yes.
8 Q. And so it would follow that
9it is illegal to order a transfer to torture?
10 A. I mean, like you say, I am
11not a lawyer, so, you know, it's difficult for me
12to answer this in a legal context. I would say,
13from an investigative point of view, yes.
14 Q. Now, I am going to ask you a
15couple of questions about GO2008-6920. That is the
16general occurrence investigation into the Globe and
17Mail article.
18 I think we spent a fair bit of
19time on that, so I am not going to bring you to
20that document, but, by all means, if you would like
21to review it, please let me know and I will direct
22your attention to it.
23 Whenever you conduct a CFNIS
24investigation, it is a law enforcement matter that
25can potentially take criminal or service charges?
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1 A. Yes.
2 Q. And the integrity of the
3investigation is of paramount importance?
4 A. Yes.
5 Q. And you gave some evidence
6today about that investigation into the Globe and
7Mail article, and you stated that, to the best of
8your knowledge, the three pages that we reviewed
9represented the totality of the investigation?
10 A. I said I wasn't sure whether
11there was other documents that were left out. I
12think that was my evidence. I was not going to say
13that these are only the three documents that exist,
14because I am not certain.
15 Q. But, in the normal course, an
16operations officer would include the steps that
17they took in the investigation in that report; is
18that correct?
19 A. It would include a summary in
20the concluding remarks, yes.
21 Q. It would include a summary of
22the investigative steps he took?
23 A. That were relevant to the
24investigation, yes.
25 Q. And I assume if you, at some
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1point, come across other documents that aren't yet
2in the hands of the Commission, that you will make
3those available to your counsel, and that those
4then will be provided to the Commission.
5 So based on that report that was
6prepared by Operations Officer O'Sullivan, we can
7see that the author of the article was not
8contacted?
9 A. Yes. It appears that way,
10yes.
11 Q. And the Canadian Forces
12members who allegedly transferred individuals, they
13weren't contacted or interviewed?
14 A. It appears that way, as well,
15yeah.
16 Q. And no attempts were made to
17locate the individuals who were allegedly
18transferred?
20 Q. And no attempts were made to
21ascertain whether these Canadian Forces members may
22have had reason to believe that detainees were
23transferred to a substantial risk of torture?
24 A. It doesn't appear so, on
25investigation.
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1 Q. So, in fact, no witnesses
2were interviewed?
3 A. I can't say for sure, but
4certainly by the documents we have, it appears that
5way.
6 Q. And no evidence was
7collected?
8 A. Again, it appears that way.
9 Q. In retrospect, would you call
10that an adequate investigation?
11 A. Again, I don't have the other
12documents. I will state, again, that the
13information that is provided in the media report,
14none of it is concrete information that any crimes
15had occurred and that the Commander would have
16known that if he transferred individuals, and nor
17would any of the allegations that Canadian Forces
18personnel acted inappropriately.
19 Q. My question was whether this
20was, in your view, an adequate investigation.
21 A. I can't really answer that,
22because I haven't done an in-depth review of that
23file. If it is just those three pages, then, you
24know, certainly I can understand why it would
25appear that way.
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1 Q. So you are saying if it is
2just those three pages -- and those are in fact the
3only pages before this Commission. If it is just
4those three pages, it was not an adequate
5investigation?
6 A. If I read the article, as I
7say, there is -- and I think in the conclusion of
8that report, it clearly states that they were
9focussed on whether Canadian Forces personnel had
10acted inappropriately with detainees, and there is
11no allegations in that article of any Canadian
12Forces personnel. So that's what the focus of that
13investigation was.
14 So clearly there was no
15allegations or there was no information in that
16article that would lead you to believe that.
17 Q. Now, sir, you gave evidence
18that your understanding of the applicable law was
19that it could be -- that it was illegal to order a
20transfer to torture?
21 A. Yes.
22 Q. Now, this article presented
23an allegation that perhaps an individual in
24Canadian Forces custody was transferred to torture.
25 My question for you is that given
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1that no witnesses were interviewed and no evidence
2was collected, was this an adequate investigation,
3in your view?
4 A. I go back to you need to
5clearly identify whether the Commander knew that
6the potential of torture by transferring these
7individuals. So --
8 Q. So the relevant issue is what
9the Commander knew. Was the Commander interviewed?
11 Q. Thank you. Those are my
12questions.
13 THE CHAIR: I just have one. Are
14you suggesting that there may be other reports
15beyond these three pages that were in the report?
16 THE WITNESS: I am not suggesting
17that, but I don't want to go on record and say that
18is all that exists. If there is something else,
19that's --
20 THE CHAIR: So if you get a file,
21does the ops officer give you the whole file, or is
22it just you read it off the computer? You get an
23investigative file?
24 THE WITNESS: There could be all
25kinds of investigative activities in the computer
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1that form part of the investigation that don't get
2printed out.
3 So there are occasions that there
4could be a whole bunch of investigative activities.
5They should be summarized in the concluding remarks
6of the investigation, so -- but I don't want to go
7on record to say these are the only three pages,
8and then all of a sudden there is another
9investigative activity that is in there.
10 THE CHAIR: I can appreciate that.
11I understand what you are saying, but is somebody
12responsible to give you the best available
13documentation that would support a conclusion? Is
14the ops officer supposed to be doing that?
15 THE WITNESS: He does the
16investigation. Whoever signs off the report then
17reviews that investigation in SAMPIS. If they're
18happy with the conclusion of that investigation,
19they will sign off the report.
20 THE CHAIR: Just to be clear, who
21reviews the entire investigation that was done by
22an NIS officer in the field? Who reviews that
23investigation?
24 THE WITNESS: It would be the
25person who signs off on the report and the case
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1manager.
2 THE CHAIR: From there, they do
3the concluding report?
4 THE WITNESS: Then they would
5print out the relevant documents that gives the
6Commander the knowledge of what that investigation
7entailed.
8 THE CHAIR: So would it be fair to
9say that if a person is reviewing the entire
10investigation, they have done a concluding report
11and there is only three pages with limited
12information within the investigative report, that
13it is unlikely that there would be anything else
14beyond that?
15 THE WITNESS: It is unlikely, but
16like I say, I am not sure.
17 THE CHAIR: Okay, thank you.
18 THE WITNESS: Okay.
19 Mr. Wallace?
20 MR. WALLACE: Thank you.
21 THE CHAIR: Mr. Wallace, would
22this be an appropriate time for us to take a break?
23You have some questions, and I believe Ms. Richards
24will have some questions.
25 MR. WALLACE: I am fine with that.
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1 THE CHAIR: We will take 15
2minutes. We have been going since 1:30.
3--- Recess at 3:01 p.m.
4--- Upon resuming at 3:15 p.m.
5 MR. WALLACE:
8 CHAIR: Mr. Wallace, please.
9 MR. WALLACE: Thank you, sir.
10CROSS-EXAMINATION BY MR. WALLACE:
11 Q. Lieutenant-Colonel, my name
12is Mark Wallace and I am here representing your
13former commander, Captain Stephen Moore.
14 A. Yes, sir.
15 Q. And I gathered, in your
16evidence this morning, that you have not always
17been a member of the NIS; correct?
18 A. Yeah. That's correct, yes.
19 Q. And after obtaining your
20military police credentials, you worked as a
21military policeman as opposed to an NIS officer?
22 A. Yes. I have worked in the
23military police other than the NIS; correct.
24 Q. And so you are familiar both
25with the chain of command as it relates to members
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1of the NIS and as it relates to military police
2officers?
3 A. Yes.
4 Q. Now, as you have told us this
5morning, you occupy the position now as the
6Commanding Officer of NIS; correct?
7 A. That's correct, sir, yes.
8 Q. And you have command
9responsibility of all of the members of the NIS?
10 A. Yes.
11 Q. Correct? And you have
12command authority, ultimately, over the NIS
13officers in theatre; correct?
15 Q. And by the same token, your
16immediate superior, when you first occupied the
17position, Captain Moore, he had command authority
18over all of the NIS officers in theatre; correct?
19 A. Yes.
20 Q. And you will agree with me, I
21hope, that he did not exercise similar command
22authority over the military police officers in
23theatre; correct?
25 Q. The senior military police
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1officer in theatre was a Task Force Provost
2Marshal; correct?
3 A. Yes.
4 Q. And the military police
5officers serving in theatre reported to the Task
6Force Provost Marshal; correct?
7 A. Sorry, can you say that
8again?
9 Q. The military police officers
10-- I am excluding NIS. The military police
11officers in theatre, they in fact reported to the
12Task Force Provost Marshal?
13 A. Yes, that's right.
14 Q. And the Task Force Provost
15Marshal, in turn, he reported to the task force
16commander?
17 A. Yes.
18 Q. And there was no command link
19between the Canadian Forces Provost Marshal and the
20Task Force Provost Marshall; correct?
21 A. Yes, correct.
22 Q. And what link there was is
23what's been described as a technical chain of
24command; correct?
25 A. Yes.
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1 Q. And are you in a position to
2inform the Panel as to what the technical chain of
3command is?
4 A. Yeah. The technical chain of
5command means the Canadian Forces Provost Marshal
6is the figurehead of the military police
7responsible for developing technical procedures on
8how they do business, responsible for selection,
9recruiting and training, and ensuring that the
10Policy and Procedure Manual is in order.
11 Q. Now, in connection with the
12Task Force Afghanistan, there was a technical
13directive issued through the Office of the Provost
14Marshal for each roto; correct?
15 A. Yes. There is, yes.
16 Q. And the important thing, from
17our perspective, is that a technical directive,
18given the absence of a command structure between
19the Provost Marshal -- the Canadian Forces Provost
20Marshal and the MPs in theatre does not hold the
21force of an order; correct?
22 A. Yes, that's correct. It is
23not an order. It is a technical directive.
24 Q. And, therefore, if a military
25police officer acted not in accordance with a
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1technical directive, he could not be charged with
2failing to obey an order; correct?
4 Q. I wanted to ask you a couple
5of questions about the site visit that my colleague
6from BC Civil Liberties and Amnesty brought to your
7attention. If you will -- do you have it there?
8 A. I am not sure, sir. Is it
9volume 5?
10 Q. It is volume 2 of 5. It is
11at tab 49. She showed you the page with the small
12number 285, and then it also had in the right-hand
13corner "3 of 3".
14 A. I believe I have that.
15 Q. Have you got that? Okay.
16I am really just asking you to have it there just
17to situate you in terms of my question.
18 You were told, as part of my
19colleague's questions, that she believed this site
20inspection visit report was what led to the
21suspension of transfers in November of 2007, okay?
22 A. Yes.
23 Q. Now, you were asked questions
24concerning this report and the information it
25contained, and specifically you were asked if the
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1allegations of abuse and the finding of the
2implement allegedly used, whether or not that could
3bring into play the law of armed conflict or
4international law. Do you recall that?
5 A. Yes.
6 Q. Okay. And you indicated
7that, in your opinion, the allegation of abuse in
8the finding raised the possibility that there could
9be a violation of the law of armed conflict or
10human international law; correct?
11 A. Correct.
12 Q. Now, the site inspection
13visit itself only contains allegations of abuse and
14the fact that this implement was seen; correct?
15 A. Yes.
16 Q. It does nothing to inform you
17or help you determine the state of knowledge of the
18commanders who may have ordered that transfer;
19correct?
21 Q. And from your perspective of
22investigating a violation of the law of armed
23conflict or international law, this is the
24operative, or this is the issue that you have to
25have some evidence on; correct?
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2 Q. And the fact of abuse on its
3own does not provide you any evidence as to the
4state of knowledge of the commanders; correct?
6 Q. That's a separate issue
7altogether.
8 A. Yes.
9 Q. Now, I just wanted to ask you
10a couple of questions about your evidence this
11morning concerning the fact that there had not been
12any investigations, that you are aware of, by the
13NIS of the commanders who issued orders to
14transfer. Do you recall that?
15 A. Yes.
16 Q. Your evidence, as I
17understood it, was that there has not been, to
18date, that sort of investigation?
19 A. A specific investigation of
20the commanders on the transfer of detainees?
21 Q. That's correct.
22 A. Not to the best of my
23knowledge.
24 Q. Okay. And if the evidence
25was presented to the NIS of a specific allegation
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1against a specific commander that he had issued an
2illegal order, if I can use that term, would that
3or would that not be investigated, if you had a
4specific allegation?
5 A. We would certainly look into
6it, yes.
7 Q. Those are my questions.
8Thank you.
9 THE CHAIR: Ms. Richards, please.
10CROSS-EXAMINATION BY MS. RICHARDS:
11 Q. Thank you. Good afternoon,
12Lieutenant-Colonel Sansterre.
13 A. Good afternoon.
14 Q. Just to follow up from where
15my friend left off about whether or not there would
16be an investigation into specific allegations, of
17course, as the NIS, you would be interested in the
18specific fact situation for transfers actually
19ordered by commanders; correct?
20 A. Yes.
21 Q. You are not looking at
22general country condition reports. You are looking
23at what the commander actually did in a specific
24circumstance; correct?
25 A. Yes.
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1 Q. And in all of the information
2that we have seen to date, there was no specific
3information that was brought to the attention of
4the NIS regarding the commander's state of
5knowledge when he ordered specific transfers;
6correct?
7 A. Not that I have seen, no.
8 Q. If I could take you back to
9the Federal Court decision? I apologize. I don't
10think you expected, when you came today, it would
11be a law quiz.
12 A. That's okay.
13 Q. But it is in volume 5, and I
14believe it is at tab 42.
15 A. Yes. I know we took time for
16you to review this decision and my friends have
17taken you through a number of passages. I want to
18take you back to the passages that talk about the
19Canadian Forces' response to allegations.
20 If I could get you to look at page
2126, at paragraph 115, do you see that?
22 A. Yes.
23 Q. And in this, and I will read
24it out to you:
25 "The Canadian Forces has
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1 indicated that it will not
2 resume detainee transfers
3 unless it is satisfied that
4 it can do so in accordance
5 with its international
6 obligations, which would
7 include obligations under the
8 Convention Against Torture."
9 A. Yes.
10 Q. And it is fair to say that if
11you had that information at the time or reading it
12today, that that is information that would tell you
13that the commander is responding appropriately to
14information that has come to his attention?
15 A. He has taken the information
16seriously, yes.
17 Q. And, of course, as we have
18discussed before, you knew or now know that at the
19time of this decision, the commander had in fact
20suspended transfers?
21 A. Yes.
22 Q. And that would be evidence as
23a police officer that he was responding
24appropriately to information that came to his
25attention?
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1 A. Correct.
2 Q. And if I could turn -- get
3you to turn over to the next page, I think you have
4been taken through in some detail some of the
5evidence that was put before the judge, but if I
6could get you to look at paragraph 120, the very
7last two lines, Justice Mactavish states:
8 "... it is by no means clear
9 at this point that future
10 transfers will necessarily
11 take place in circumstances
12 that would expose detainees
13 to a substantial risk of
14 torture."
15 And, again, this information or
16conclusion by a Federal Court judge would be taken
17into account by you in considering whether or not
18the task force commander was acting appropriately?
19 A. Yes.
20 Q. And, ultimately, I am not
21sure if you are aware of the conclusion of the
22Federal Court judge in this decision, but she in
23fact refused the request for an injunction. Were
24you aware of that from reviewing --
25 A. From reading it, yes.
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1 Q. If you could turn over to the
2next page, page 28 at paragraph 124, you see here
3where the judge states:
4 "Given the uncertainty as to
5 whether transfers will resume
6 during this period, as well
7 as the lack of information
8 with respect to the terms and
9 conditions that may surround
10 future detainee transfers,
11 the applicants have not met
12 this burden."
13 So, again, the fact that a Federal
14Court judge had determined that there was some
15uncertainty whether or not the detainees would be
16transferred to torture is something that you would
17take into account, as well?
18 A. Yes, it is.
19 Q. Now, I am not sure -- you
20haven't gone through in any detail the ultimate
21decision of Justice Mactavish which came out about
22a month later, and it is the next tab. It is tab
2343.
24 MS. PASTINE: I hesitate to
25interrupt my friend's cross-examination, but I just
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1think that in fairness to the witness and to the
2Commission, that there are two additional
3paragraphs that should be put to the witness I
4don't believe were put to him previously, and that
5is paragraph 112 and 113.
6 My friend made note of the fact
7that Mactavish seemed to indicate that transfers
8could continue without harm. Yet further in the
9judgment, she indicates that that may not be
10possible, and that is at paragraphs 112 and 113.
11 MS. RICHARDS: Well, with all due
12respect, my friends had the chance to bring those
13to his attention; and, secondly, the paragraph that
14I referred to, paragraph 120, follows 112 and 113.
15And it is obviously the judge's conclusion that:
16 "... it is by no means clear
17 at this point that future
18 transfers will necessarily
19 take place in circumstances
20 that would expose detainees
21 to a substantial risk of
22 torture."
23 THE CHAIR: So noted.
24 BY MS. RICHARDS:
25 Q. If you have tab 43.
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1 A. Yes, I do have tab 43.
2 Q. If I could get you to look at
3paragraph 83?
4 Again, to be clear, I think my
5friend took you to this this morning. This is a
6subsequent decision by Madam Justice Mactavish. In
7this decision, she does note the fact that
8transfers have, in fact, now taken place. You may
9recall that from this morning.
10 A. Yes.
11 Q. And at paragraph 83, Justice
12Mactavish states:
13 "While the Canadian Forces
14 have implemented additional
15 measures designed to reduce
16 the risk to detainees
17 transferred into the custody
18 of Afghan authorities since
19 November 5, 2007, it is not
20 necessary for the purposes of
21 this motion to pass judgment
22 on the efficacy or
23 sufficiency of these
24 additional protective
25 measures."
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1 So certainly if you had read this
2decision, you would have seen, as well, that the
3Canadian Forces had taken additional measures to
4ensure that detainees were not transferred to
5torture?
6 A. Yes.
7 Q. And that would have satisfied
8you, or would have been taken into account by you
9in considering whether or not task force commanders
10were transferring, knowing there was a real risk of
11torture?
12 A. Yes.
13 Q. Now, my friend, Ms. Pastine,
14had asked you some questions about reports coming
15from CEFCOM and whether those reports were passed
16to you. Do you recall that?
17 A. Yes.
18 Q. And if you knew why those
19reports from CEFCOM were not passed to you.
20 I guess it is fair to say that
21reports coming out of CEFCOM are not routinely
22passed to the National Investigation Service?
23 A. No, unless they raise
24allegations or they raise -- they need to raise an
25investigation by the National Investigation
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1Service, then we would get a report, if that was
2the case.
3 Q. Right. Because the only time
4the National Investigation Service would be
5interested in CEFCOM is when there were allegations
6of a criminal --
7 A. Criminal or -- that is our
8mandate.
9 Q. Just to be clear, it is
10certainly not the role of NIS on a day-to-day basis
11to be reviewing or confirming the lawfulness of
12orders or decisions coming out of CEFCOM?
13 A. No.
14 Q. And you certainly wouldn't
15have time to engage in that kind of activity?
16 A. Not at all.
17 Q. In the same vein, Commission
18counsel had asked you about access to information,
19if you could ask for information from organizations
20within the CF. Do you recall those questions?
21 A. Yes, yes.
22 Q. And it is fair to say that
23you would only be asking for information when there
24was an offence to investigate?
25 A. When it was relevant to an
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1investigation, correct.
2 Q. Right. And he had asked you,
3as well, about your search warrant powers. And the
4search warrant powers which are available to police
5officers are to be used sparingly; correct?
6 A. When required, that's
7correct, yes.
8 Q. And in order to go -- you
9have to go before a judge to ask for a search
10warrant?
11 A. Yes.
12 MS. PASTINE: Mr. Chair, I
13interject to say that I am not sure how you have
14set out that examinations would be conducted, but I
15note that my friend is leading the witness on these
16questions and the witness is represented by
17counsel.
18 I would hope that the questions
19would be more in the manner of a direct
20examination, but I don't know if you have already
21made orders on this.
22 THE CHAIR: Well, our rules are a
23little bit more flexible in terms of questioning
24and questions and whatnot. I think we have seen a
25little bit of that from everybody, so I don't think
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1her questions are inappropriate at this point.
3 BY MS. RICHARDS:
4 Q. Thank you. And it is fair to
5say that, again, the power to seek a search
6warrant, you have to go before a judge?
7 A. Yes.
8 Q. And in order to exercise that
9power, there has to be a criminal offence or a Code
10of Service Discipline offence that is being
11investigated; correct?
12 A. It needs to be tied to the
13investigation; correct.
14 Q. Right. And the police
15officer who is seeking a search warrant has to have
16formed the opinion, which they swear to a judge,
17that there will be evidence collected which will
18prove that an offence has been committed?
20 Q. And so it would not be the
21practice of NIS to use search warrants to gather
22information in the absence of any type of
23investigation like that?
24 A. No, that's correct.
25 THE CHAIR: Just to clarify one
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1thing, I think you made the statement they would be
2used sparingly. I don't know that the issue of
3"sparingly" really has anything to do with it.
4Only if you have the right powers and depending on
5the investigation, you can go for search warrants.
6 THE WITNESS: If required.
7 BY MS. RICHARDS:
8 Q. Where they're required. I
9suppose, in legal parlance, it is a very coercive
10power that the police have, and the police are
11careful to use it when they have the appropriate
12grounds to seek a search warrant?
13 THE WITNESS: Yes.
14 THE CHAIR: And they can satisfy
15an affidavit.
16 MS. RICHARDS: And satisfy a
17judge.
18 THE CHAIR: Yes.
19 MS. RICHARDS: Thank you.
20 BY MS. RICHARDS:
21 Q. Now, before we move off the
22decision of Justice Mactavish, I did want to go
23back to one issue, and that was the issue about
24investigating allegations that there had been abuse
25by Afghan authorities.
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1 If you have the decision still at
2tab 42?
3 A. Yes.
4 Q. If you could turn to
5paragraph 88?
6 A. Yes.
7 Q. First of all, just by way of
8background, you are aware that Canada is in
9Afghanistan as part of a multinational force?
10 A. That's correct, yes.
11 Q. And you are also aware that
12Canada is in Afghanistan at the consent of the
13Afghan government?
14 A. Yes.
15 Q. And you would also be aware
16that there are certain arrangements that have been
17negotiated between the Canadian government and the
18Afghan government?
19 A. Yes.
20 Q. And so if you look at
21paragraph 88 -- this is just to save us all from
22having to go back to the original arrangement --
23Madam Justice Mactavish refers to the fact that in
24the arrangement negotiated between the Government
25of Canada and the Government of Afghanistan, that
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1all responsibility for the abuse of detainees are
2to be prosecuted and investigated by the Afghan
3government; correct?
4 A. Yes.
5 Q. And she states, as well, at
6paragraph 89:
7 "Canada has no independent
8 capacity to investigate
10 of detainees in Afghan
11 custody, as to do so would
12 encroach on Afghan
13 sovereignty."
14 And you would agree with that
15statement?
16 A. Yes.
17 Q. And it is for that reason
18that you have said repeatedly throughout your
19testimony that you have no jurisdiction?
20 A. No jurisdiction, yes.
21 Q. So it is fair to say that you
22would not send members of your national
23investigation force into an Afghan prison to
24investigate facts underlying those allegations, as
25well?
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2 Q. And there would certainly be
3no guarantee that the Afghan government would
4cooperate or allow your members to go in and
5investigate their authorities?
6 A. Right.
7 Q. Now, you have been taken to a
8number of pieces of information today. One of them
9were generic, what I will call, country reports or
10country condition reports about Afghanistan.
11 And Ms. Pastine took you to some
12references in the complaint by Amnesty
13International, as you may recall, and you had said
14that those were relevant information that the task
15force commander should consider; correct?
16 A. Yeah.
17 Q. Do you recall that? You
18would agree with me that the actual circumstances
19for transfers between Canada and the Government of
20Afghanistan would be more relevant for the task
21force commanders to take into account than general
22country condition reports?
23 A. Their own detainees.
24 Q. Their own detainees?
25 A. Yes, correct.
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1 Q. And I don't know if you still
2have the complaint in front of you, but the
3passages that were referred to you are in regards
4to a 2004-2005 report by the Afghan Independent
5Human Rights Commission and a report in March 2006.
6 You are aware, of course, that the
7CF were in Afghanistan as of 2005?
8 A. Yes.
9 Q. And that the arrangement that
10we're talking about for the transfer of detainees
11was negotiated in December of 2005?
12 A. Correct.
13 Q. So you would agree with me
14that the reports that preceded that, a year or two
15years earlier, would certainly be of less relevance
16in your investigation?
17 A. Less relevance than how
18Canadian detainees would have been treated,
19correct.
20 Q. And if you were looking at
21this information and forming a view as to whether
22or not there was even an offence to be
23investigated, you would certainly want to look at
24that particular arrangement that had been
25negotiated between Canada and the Afghan
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1government; correct?
2 A. Yes.
3 Q. And you would look at the
4fact that the Government of Afghanistan had
5committed in that arrangement to treat detainees
6without torture and in accordance with their
7international obligations?
8 A. Yes.
9 Q. That's one factor you would
10look at. It is fair to say another factor you
11would look at would be the fact that the Afghan
12government had agreed that the Afghan Independent
13Human Rights Commission and International Committee
14for the Red Cross could come into their prisons and
15monitor the detainees?
16 A. Yes.
17 Q. You would also consider the
18fact that, post May 3rd, 2007, representatives from
19the Department of Foreign Affairs could go into the
20prisons and monitor the detainees?
21 A. Yes.
22 Q. And all of these factors
23would be looked at by you in considering whether or
24not the task force commanders had knowledge that
25detainees were being abused?
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1 A. Yes.
2 Q. Were you also aware that
3there were military police and other members of the
4CF in theatre who were mentoring their Afghan
5counterparts?
6 A. I am aware there is military
7police doing mentoring of Afghan National Police,
8yes.
9 Q. And were you also aware that
10there were RCMP members and Correctional Services
11members who were in Afghanistan and able to visit
12the Afghan prisons?
13 A. Yes, I am aware of that.
14 Q. Did you ever receive or, to
15your knowledge, did the National Investigation
16Service ever receive any reports from those
17organizations that would have drawn concerns about
18Canada's decision to transfer detainees to Afghan
19authorities?
20 A. Not to my knowledge.
21 Q. Okay. So we've talked a
22little bit about information that you might have
23known generically. I would just like to take you
24back, in summary, to the information that you did
25know as a result of the OP Centipede
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1investigations.
2 So if I could get you to pull up
3the NIS witness documents, volume 1, tab 11, it is
4the blue book.
5 A. I don't seem to have that
6anymore. I've got a volume 2.
7 Q. Oh, that should be volume 1
8of 2.
9 A. Sorry, it's right here.
10 Q. Now, if I could ask you just
11to situate ourselves at page 6 of 66 --
12 A. What tab? Sorry.
13 Q. Tab 11.
14 A. Thank you. Yes.
15 Q. So at page 6 of 66, this is a
16letter signed by you forwarding, as I understand
17it, a summary of the conclusions on the eight
18investigations that have taken place under
19Operation Centipede?
21 Q. If we turn in, commencing at
22page 14, a summary has been prepared of all of the
23investigations?
24 A. Yes.
25 Q. And this would have been
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1reviewed by you when you wrote that letter?
2 A. Yes.
3 Q. If we can just go through
4them just very quickly, in terms of what evidence
5you had and the NIS had in terms of allegations
6about treatment of detainees, at 6912, the very
7first one, as I understand it, the conclusion,
8based on the information that was gathered, was
9that the detainee had in fact been treated well
10while he was in ANA, Afghan National Army, hands
11and that his welfare had been confirmed by CF
12members?
13 A. Was well treated by ANA at
14all times; correct.
15 Q. If you look at paragraph --
16page 10. Sorry.
17 THE CHAIR: Okay, thank you.
18 MS. RICHARDS: Sorry. Just for
19your reference, that conclusion is found in point
202.
21 BY MS. RICHARDS:
22 Q. In terms of the rumour about
23human remains having been found in a ditch, there
24was no evidence connecting that, those human
25remains, to the detainee in question?
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2 Q. Okay. If we look down at
36913, again -- and that is on page 15 of 66, if you
4look down at the very bottom.
5 The conclusion was that the --
6first of all, the unidentified Afghan detainee was
7never in the custody of CF personnel, and,
8furthermore, that the Canadian soldier present did
9not witness any ill treatment?
11 Q. If we look down at 6917, this
12was the allegation by a member that a detainee had
13been transferred, walked out of range, and then
14shot. In fact, the conclusion was that the
15individual who brought that information forward did
16not serve in a position in Afghanistan where he
17would have encountered the capture of detainees?
18 A. That's correct. It was found
19that his information was not credible at all.
20 Q. If you turn over to the next
21page, 6918, and this is a Colonel Noonan affidavit.
22In fact, the information in that incident was that
23the CF members had taken appropriate action and
24taken a detainee back when they were concerned
25about the treatment of the detainee?
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1 A. Yes.
2 Q. And that information
3certainly would satisfy you that CF members were
4aware of their obligations or acting appropriately?
5 A. Yes.
6 Q. If you look at 6919, if you
7look down at the bottom on point 4, again, it was
8concluded that there were no indications that
9detainees were being abused after they had been
10turned over?
11 A. Yes, that's correct, para 4.
12 Q. And if I could get you to
13turn over -- I think we have a bit of a duplication
14here. If you could turn over to page 20 of 66,
15this the summary of 6920 and 6921, which we have
16discussed in great detail today.
17 What I would like to draw your
18attention to is the very last line, starting on the
19bottom of that page, where it states:
20 "Subsequently the Government
21 of Canada, including the CF
22 and DND, have taken action on
23 many levels throughout its
24 various parliamentary affairs
25 and high-level national and
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1 international menus." (As
2 Read)
3 So certainly your organization was
4aware there had been a Government of Canada
5response to the allegations that had been raised in
6the Globe and Mail article?
7 A. Certainly.
8 Q. Finally, if we look at the
9last investigation under Operation Centipede,
1023231, on investigation, your organization was
11satisfied that this detainee had never been in CF
12custody and that there was no real evidence that he
13had been mistreated by Afghan authorities?
15 Q. So it is fair to say that as
16a result of Op Centipede, the information that was
17available to the NIS was that all of these
18allegations that had come forward about detainees
19being mistreated by Afghan authorities were
20unfounded?
21 A. They were unfounded,
22unsubstantiated; correct.
23 Q. So in terms of the response
24of the Canadian Forces to those allegations, you
25had evidence that, in one instance, the Canadian
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1Forces had in fact taken a detainee back where
2there had been an allegation or concern about
3mistreatment; that's correct?
5 Q. And you had information that
6the Canadian Forces and the Government of Canada
7indeed was responding and aware of these
8allegations?
9 A. Yes.
10 Q. And so it is fair to say
11that, based on all of that information, you did not
12form a credible suspicion or have reason to believe
13that the task force commander had committed a
14criminal offence that should be investigated by the
16 A. At no time did I.
17 Q. Thank you very much. Those
18are my questions.
19 THE CHAIR: Mr. McGarvey?
20 MR. McGARVEY: Just some brief
21followup.
22RE-EXAMINATION MR. MCGARVEY:
23 Q. With respect to the General
24Occurrences 6920 and -21 and the suggestion that
25there was a government response, would an
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1after-the-fact government response to what might be
2a criminal allegation preclude you from exercising
3your independent authority to investigate and
4perhaps lay charges for the previous behaviour?
5 A. No. If we had jurisdiction
6to do so, no.
7 Q. So the fact that there is a
8government response and follow-up does not really
9play one way or another into whether you would look
10into the allegations themselves and whether there
11was criminal conduct disclosed in relation to them?
12 A. Right.
13 Q. You were asked about 6913 and
14the conclusion that the person in question was
15never mistreated in the hands of Afghan
16authorities.
17 If you recall, the name of the
18person who disclosed some of this is a Colonel
19Toussaint?
20 A. Yes.
21 Q. And if you could turn to tab
22-- sorry, I apologize. Tab 18.
23 THE CHAIR: In which book?
24 MR. McGARVEY: NIS witness book
25number 1, volume 1 of 2, tab 18, page 20. Sorry,
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111 of 21 of our numbering system.
2 BY MR. McGARVEY:
3 Q. Now, in examination by Ms.
4Richards, you indicated that your conclusion of
56913 is that the detainee was not ill treated by
6the Afghan authorities.
7 If you look at paragraph 3(c) of
8Colonel Toussaint's -- I believe this is his second
9interview, he says, he offered speculation on many
10aspects of this complaint.
11 He stated he witnessed an ANA
12soldier walk up behind the detainee in the back of
13the Ford Ranger vehicle and cross check him in the
14back with an RPG-2.
15 Would that, in your view, not
16constitute some kind of mistreatment by the Afghan
17authorities, albeit perhaps not particularly
18serious in this particular instance?
19 A. Yes.
20 Q. You were asked questions
21again by Ms. Richards about international
22agreements, the December 2005 agreement,
23Correctional Services of Canada and mentoring
24arrangements, and how those might be factors you
25take into account when assessing potential criminal
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1allegations vis-à-vis the commanders.
2 Did you, in fact, look at those
3factors in respect of any consideration of whether
4to pursue an investigation into the command, or is
5it just that now, on reflection, you might take
6those into account if you were looking into such an
7investigation?
8 A. We didn't begin an
9investigation, because we didn't have any
10information to suspect that the commander had
11committed a crime in doing so.
12 Q. Similarly, with respect to
13Justice Mactavish's decision, you were taken to
14passages which might lead one to think that
15arrangements, appropriate arrangements, for
16protections were made, and so on.
17 You were asked earlier whether you
18had looked at the paragraph that suggest there are
19problems. Is it fair to say, though, that none of
20this decision and none of the underlying facts in
21this decision did, in fact, play a role in any
22decision whether to or not to pursue an
23investigation, since you hadn't actually read the
24decision?
25 A. That's correct. We hadn't,
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1yes.
2 Q. And if you were to engage in
3that exercise now to consider an investigation, you
4would want to look at all of the facts, whether
5favourable or not favourable, to be fair to the
6subject?
7 A. Yes.
8 Q. You were asked by Mr. Wallace
9about the -- oh, sorry, one more follow-up to Ms.
10Richards. You were taken to tab 49 of volume 2 of
11the main witness documents.
12 MS. RICHARDS: Sorry, I didn't
13take him to that document.
14 MR. McGARVEY: I'm sorry, no. You
15are right. It was Mr. Wallace. You are right.
16 BY MR. McGARVEY:
17 Q. My apologies. In fact, you
18were taken there, I think, by Mr. Wallace and by
19Ms. Pastine.
20 So this document, this site visit
21report, it was suggested to you by Mr. Wallace that
22there is nothing disclosed in that document which
23goes to the issue of the commander's knowledge.
24 This is the one, if you recall, at
25the bottom it has number 285. It is near the end,
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1maybe five pages from the back of tab 49.
2 A. Yes.
3 Q. Okay. If you would just turn
4to the heading of that email thread, which is at
5page 1 of 3, and you see the address lines of the
6email itself?
7 A. Yes.
8 Q. You can see that there are
9two that may be of some interest, NDHQ CEFCOM J9
10and NDHQ OTT. Do those suggest that this email
11would be sent to National Defence headquarters? Is
12that what that would signify to you?
13 A. CEFCOM J9, and -- yes.
14 Q. Okay. So you weren't given
15these reports, but had you been given them, there
16might be some information, such as who they're
17addressed to, which would give you some insight
18into whether a commander came to knowledge of what
19is in these reports; is that fair to say?
20 A. That's fair to say.
21 Q. Something I wish to clarify
22that Mr. Wallace took you to was the fact that a
23technical directive is not an order. Could I ask
24you the same question about a standard operating
25procedure, what its status is.
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1 Would they be considered orders or
2something less than an order, a policy document, a
3directive?
4 A. Yes. Certainly my
5understanding is they're orders.
6 Q. Standard operating procedures
7are orders under your understanding?
8 A. If they're task force orders,
9you know, it depends on what -- SOPs are
10guidelines, is basically what they are. They're
11guidelines -- in what context are you asking the
12question, I guess?
13 Q. Well, if they were a standing
14-- if they're an SOP with respect to detainee
15handling and transfer, do you know if that would
16constitute an order, or would it depend on the
17specific document and you would have to look at
18the --
19 MS. RICHARDS: I just don't want
20the witness to be misled, because there is an SOP
21that is in evidence before you that is a DFAIT
22document. So I certainly want to be clear Mr.
23McGarvey is not trying to put to this witness that
24a DFAIT SOP would be binding.
25 BY MR. McGARVEY:
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1 Q. No. I am just trying to get
2the status of various documents that might give
3direction, but fall short of being something as
4strong as a theatre standing order, for instance.
5 A. Right, right. It is my
6experience that SOPs are guidelines on how to
7operate in certain circumstances and give you
8guidelines.
9 Q. Could it constitute an
10offence of neglect of duty, for example, to fail to
11properly follow a technical directive or an SOP?
12 A. I am not certain about that.
13 Q. Fair enough. Finally, there
14was some question, and understandably, about
15whether, for instance, the three pages in
16investigation 6920 were the whole story.
17 Of course, this Commission, to the
18extent possible, wishes to get the whole story.
19Would you be prepared to undertake to the
20Commission to review with counsel the documentation
21that has been provided to ensure that we do have
22the full story with respect to NIS investigations
23into detainee handling; in other words, confirm
24whatever has been provided is the full story?
25 MS. RICHARDS: Are you asking
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1about 6920?
2 MR. McGARVEY: I would say about
3Operating Centipede generally, since he signed off
4on it, would be what we would be seeking, if that
5would be something he is prepared to do.
6 MS. RICHARDS: I just want to be
7clear. We gave the Commission a broader list than
8Operation Centipede in terms of detainee
9investigations, and the Commission, in consultation
10with the other parties, chose which files they
11wanted to be produced to them. So I just want to
12be clear about that.
13 Certainly we can go back and check
14on 6920. I don't think this witness was intending
15to say there is documentation missing. He just
16wanted to be 100 percent sure. Obviously if it
17comes to our attention that information is missing,
18we will provide it to the Commission, to be clear
19on the record.
20 THE CHAIR: If I understand the
21request, it is just something -- I think there was
22a little bit of, Could there potentially be some
23documents there? And this is to review through
24Operation Centipede, if there are other ones that
25would have been relied on, that for whatever reason
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1weren't shared, not because of any untoward reason,
2that they be made available.
3 I think it is a request between
4counsel to determine that or to review that.
5 MS. RICHARDS: Yes. I think it is
6fair to say that throughout the hearings there may
7be issues that come up with witnesses about
8documents, and we're certainly more than willing
9and happy to go back and follow up and provide
10those documents as we become aware of them.
11 BY MR. McGARVEY:
12 Q. Maybe I could ask you this.
13Did you assist in collecting and providing the
14documents in relation to NIS investigations that
15were provided for this proceeding, since you were
16the CO of the NIS, I think, when those were
17disclosed?
18 A. I didn't personally assist,
19no.
20 Q. So would you be prepared to
21assist counsel in ascertaining that whatever they
22were able to produce was a thorough picture, so
23that we are not unfairly suggesting there is an
24inadequate investigation, when in fact there may be
25documents that we should have?
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1 MS. RICHARDS: I think we have
2just committed to doing that. I don't think you
3need this particular witness to undertake to do
4that. We will certainly do that and we will let
5you know if anything else comes to our attention.
6 THE CHAIR: I think you may ask
7him to check the computer, or whatever the case, is
8for --
9 MS. RICHARDS: Yes. Just to be
10clear, Lieutenant-Colonel Sansterre is a very busy
11man, the Commanding Officer of NIS. I don't think
12it is going to be him personally, but we are happy
13to go back.
14 THE CHAIR: The circumstances are
15this is an important matter, and hopefully someone
16can look at it. I know you probably have a very
17large staff with lots of people to help you.
18 THE WITNESS: Sure.
19 MR. McGARVEY: Those are all of my
20questions. Thank you very much.
21 THE CHAIR: Any follow-up
22questions, just to make sure we have covered all?
23Mr. Berlinquette?
24 Well, sir, I want to thank you for
25your attendance here today. I wasn't sure how long
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1you would be, but it is probably a little bit
2longer than we initially thought we would be with
3you today. But thank you very much for your time,
4and, not only that, your service to our country.
5 THE WITNESS: Thank you very much.
6 THE CHAIR: Thank you. We are
7adjourned until tomorrow at 9:00 a.m.
8 And I would expect we may have a
9fairly full house tomorrow, so those that are
10wishing to get seats, I would suggest they maybe
11get here early.
12 MS. RICHARDS: We have guaranteed
13seats.
14 THE CHAIR: Yes, you do.
15--- Whereupon hearing the adjourned at 4:05 p.m.
16 to be resumed on Tuesday, April 13, 2010
17 at 9:00 a.m.
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5 I HEREBY CERTIFY THAT I have, to the best
6 of my skill and ability, accurately recorded
7 by Computer-Aided transcription and transcribed
8 therefrom, the foregoing proceeding.
9
10
11
12
13
14
15 Teresa Forbes, CRR, RMR,
16 Computer-Aided Transcription
7
9(613) 564-2727 (416) 861-8720

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1 Military Police Complaints Commission

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